B 


fe^.^ 


4 


c: 


Bor-' 


TREATISE  ON  THE  LAW 


OF 


PROMISSORY   NOTES 


BILLS  OF  EXCHANGE. 


BY 

THEOPHILUS   PARSONS,  LL.D. 

DANE    PROFESSOR   OF    LAW  IN    HARVARD    UNIVERSITY,  AND  AUTHOR    OF    TREATISES  ON    THE   lAW 

OF  CONTRACTS,  ON  THE  ELEMENTS  OF  MERCANTILE  LAW,  ON  MARITIME  LAW, 

AND  THE  LAWS  OF  BUSINESS  FOR  BUSINESS  MFJJ. 


IN    TWO  VOLUMES. 
VOL.  I. 


PHILADELPHTA: 
J.    B.    LIPPINCOTT    &    CO. 

1  S  7  0. 


9>4^9s2>  A 


V. 

r 


Entered  according  to  Act  of  CongTMa,  In  the  year  186'i.  bv 

THEOPHILUS      PARSONS, 

Jn  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachoseti* 


PREFACE 


To  the  many  existing  works  on  the  Law  of  Notes  and 
Bills,  I  have  added  another,  in  which  I  endeavor  to  cover 
a  wider  ground.  I  have  tried  to  present,  in  the  text, 
every  important  question  in  relation  to  this  topic  which 
has  been  considered  in  the  courts  of  England  or  any  of 
the  United  States,  with  the  best  conclusions  I  could  form. 
In  the  notes,  I  have  cited  very  fully  the  cases  bearing 
upon  these  questions,  —  much  the  larger  part  of  them  by 
name,  volume,  and  page  only,  —  that  those  who  wish  to 
do  so  may  pursue  the  investigation  through  the  original 
authorities.  I  have  also  quoted,  freely,  apposite  passages 
from  the  most  important  or  instructive  decisions,  with 
the  purpose  of  meeting,  so  flir  as  that  is  possible,  the 
growing  difficulty  of  accumulating  in  our  libraries  a  com- 
plete series  of  all  the  published  Reports  ;  a  difficulty 
which  is  so  great,  and  increases  so  rapidly,  that  it  will 
compel  a  reform.  It  is  not  desirable  that  this  reform 
should  be  accomplished  by  withholding  the  decisions,  but 
by  compressing  them.  Some  of  the  learned  essays  which 
our  Reports  contain  are  very  valuable.  But  it  might  be 
a  benefit  to  the  courts,  to  the  profession,  and  to  the 
community,  if  an  avoidance  of  diff'ase  and  discursive 
argumentation  should  give  to  the  decisions  point,  pre- 
cision, and  weight,  and  permit  a  single  volume  to  contain, 
and  to  express  distinctly,  all  the  law  which  must  now 
be  sought  in  very  many,  with  much  laboi',  and  some- 
times imperfect  success. 

T.  P. 

Cambridge,  September,  1862. 


806214 


CONTENTS   OP  VOL.  I. 


CHAPTER    I. 

THE    ORIGIN    AND    FUNCTION    OF   NOTES    AND    BILLS        .      .       1 

CHAPTER    II. 

PKOMISSORY   NOTES. 

SECTION    I. 
Definitions 14 

SECTION    II. 
The  Form  of  Promissory  Notes 21 

CHAPTER    III. 

THE    ESSENTIAL    ELEMENTS    OF   A    NEGOTIABLE   PROMISSORY  NOTE, 

SECTION    I. 
Certainty  as  to  the  Payee 30 

SECTION  n. 

Certainty  as  to  the  Payor 35 

SECTION  ni. 

Certainty  as  to  the  Amount 37 

SECTION    IV. 
Certainty  as  to  the  Time  of  Payment 38 

SECTION    V. 

Certainty  as  to  the  Fact  of  Payment 42 

VOL.  I.  a* 


VI  COXTENTS. 

SECTION    VI. 

When  an  Uncertainty  is  Matter  of  Form,  and  not  of  Substance    .     .     il 

SECTION    VII. 
Delivery 48 

CHAPTER    IV. 

BILLS    OF    EXCHANGE. 
SECTION     I. 

What  they  are 52 

SECTION  n. 

The  Obligations  of  the  Parties 54 

SECTION   m. 
Inland  Bills  and  Foreign  Bills 55 

SECTION  rv. 

The  Sets  of  Foreign  Bills 58 

SECTION    V. 
The  Certainty  requisite  in  a  Bill  of  Exchange 60 

CHAPTER    V. 

PERSONS    WHO    MAY   BE    PARTIES   TO    NOTES    OR    BILLS. 

SECTION    I. 
Infants 67 

SECTION    11. 
Married  Women 78 

SECTION    III. 

Persons  under  Guardianship 89 


CONTENTS.  VU 

SECTION    IV. 
Agents 90 

SECTION    V. 
Partners 123 

SECTION    VI. 
Lunatics 149 

SECTION    VII. 
Aliens 151 

SECTION    VIII. 
Bankrupts 153 

SECTION    IX. 
fixecutors  and  Administrators 154 

SECTION    X. 
Corporations 163 

CHAPTER    VI. 

CONSIDERATION. 

SECTION    I. 

The  general  Principles  in  relation  to  the  Consideration  of  Notes 
and  Bills 175 

SECTION    11. 
Failure  of  Consideration 203 

SECTION    III. 
Illegal  Consideration 212 

SECTION    IV. 
Transfers  for  antecedent  Debts,  or  for  Security 218 


Vlll  CONTENTS. 

CHAPTER    VII. 

THE   RIGHTS    AND    DUTIES    OF   THE    MAKER. 

SECTION    I. 
Where  a  Party  signs  as  Principal •    .    .    .    .     229 

SECTION    II. 
Where  a  Party  signs  as  Surety 233 

SECTION    III. 
Of  joint  Makers  and  several  Makers 247 

CHAPTER    VIII. 

HOLDER. 

SECTION    I. 
Rights  and  Duties  of  the  Holder 253 

SECTION    II. 
Who  is  a  honajide  Holder  of  Negotiable  Paper .......     254 

SECTION    HI. 
Against  what  Defences  a  honajide  Holder  is  protected      ....     274 

CHAPTER    IX. 

ACCEPTANCE. 

SECTION    I. 
What  constitutes  Acceptance 281 

SECTION    H. 
Promise  to  accept .     292 

SECTION    HI. 

Conditional  and  qualified  Acceptances 300 


CONTENTS.  IZ 

SECTION    IV. 
Acceptance  for  Honor 313 

SECTION    V. 
What  Acceptance  admits 320 

SECTION    VI. 
Extinguishment  of  the  Obligation  incurred  by  Acceptance    .     .    .    324 

CHAPTER    X. 

PRESENTMENT  FOR  ACCEPTANCE. 

SECTION    I. 
Of  the  Rights  and  Duties  of  a  Payee  before  Acceptance ....     330 

SECTION    II. 
Proceedings  on  Non-acceptance 850 

CHAPTER    XI. 

PRESENTMENT    FOR   DEMAND. 

SECTION    I. 

Reasons  for  the  requirement  of  Demand  of  Payment  of  Negotiable 
Paper  and  of  Notice  of  Dishonor 353 

SECTION    II. 
By  whom  Demand  may  be  made 357 

SECTION   in. 
Of  whom  Demand  may  be  made 361 

SECTION    IV. 
In  what  Manner  Demand  should  be  made 367 

SECTION    V. 
At  what  Time  Demand  should  be  made 373 


^  CONTENTS. 

SECTION    VI. 
At  what  Place  Demand  should  be  made 421 

SECTION    VII. 

Excuses  for  Absence  of  Demand  of  Payment 442 

1.  Where  the  Demand  for  Payment  cannot  be  made 443 

2.  Ins^olvency ...  446 

3.  Othei'  Circumstances 448 

4.  The  Acts  of  a  Party  which  affect  his  Right  to  require  Demand 

of  Payment 463 


CHAPTER    XII. 

NOTICE    OF    DISHONOR. 

SECTION    I. 
The  Form  of  the  Notice 466 

SECTION   n. 
The  Manner  in  which  Notice  should  be  given 477 

SECTION    III. 
To  what  Place  the  Notice  should  be  sent 487 

SECTION  rv. 

To  whom  Notice  should  be  given 499 

SECTION    V. 

By  whom  Notice  should  be  given 503 

SECTION    VI. 
At  what  Time  Notice  should  be  given 506 

CHAPTER    XIII. 

EXCUSES    FOR    WANT    OF   NOTICE. 

SECTION    I. 

Excuses  for  Non-notice,  grounded  on  the  necessary  Knowledge  by 
the  Party  to  be  notified 523 


CONTENTS.  XI 

SECTION    11. 

Excuses  for  Non-notice,  grounded  on  Impossibility  of  Notice      .     .     525 

SECTION    III. 

Excuses  for  Non-notice,  grounded  on  the  Absence  of  Right  in  any 

Party  to  require  Notice 539 

SECTION    IV. 

Excuses  for  Non-notice,  grounded  on  a  Waiver  of  the  Right  to  re- 
quire Notice 575 

1.  When  the  Waiver  is  in  Writing  on  the  Note  or  Bill     .     .     .     .     576 

2.  When  the  Waiver  is  inferred  from  Acts  of  the  Indorser  or 

Drawer 582 

3.  When  the  Waiver  occurs  on  the  Day  of  Maturity 592 

4.  When  the  Waiver  occurs  after  Maturity 594 

5.  By  whom  the  Waiver  is  made 609 

6.  To  whom  the  Waiver  is  made 610 

7.  Presumptive  Evidence  in  reference  to  Waiver 612 

SECTION    V. 

General  Remarks  on  the  Subject  of  Excuse  for  Non-notice  .     .     .     627 

CHAPTER    XIV. 

OF  PROTEST  AND  OF  RE-EXOHANGE. 

SECTION    I. 
Of  Protest 633 

SECTION    II. 
Of  Re-exchange  and  other  Damages 648 


STAMPS. 

These  volumes  were  stereotyped  before  the  Statute  of  the 
United  States  imposing  stamps  was  enacted.  An  Appendix  has 
been  added  at  the  close  of  the  text  of  the  second  volume,  imme- 
diately before  the  Index,  containing  an  accurate  reprint  of  the 
provisions  of  the  Statute  in  relation  to  Bills,  Notes,  Lettei?  of 
Credit,  Drafts,  Orders,  and  Checks  ;  together  with  an  examina- 
tion of  the  questions  which  the  Statute  suggests ;  and  the  English 
authorities  upon  those  questions  which  have  arisen  under  the 
English  Stamp-Acts  and  may  arise  under  our  own. 


INDEX  TO  CASES  CITED. 


A. 


Abat  r.  Nolt^ 

r.  Rion 

Abbe  V.  Rood 

Abbey  v.  Lill 


11.162 

I.  504 

II.  577 

1.485;  11.491 


Abbott  V.  Agricultural  Bank  of  Missis- 
sippi II.  92,  96 
V.  Hendricks  I.  194 
V.  McElroy                            II.  645 
V.  Mackinley  I.  83 
V.  Mitchell                            II.  470 
V.  Muir                                   II.  472 
V.  Striblen                            II.  309 
Abel  V.  Sutton                          I.  146  ;  II.  7 
Abell  V.  Douglass                              I.  198 
Abercrombie  v.  Knox                        I.  237 
Aborn  v.  Bosworth     I.  464,  642  ;  II.  261, 
291,  294,  298 
Abraham  r.  Dubois                   II.  330,  332 
Abrahams  r.  Bunn                             II.  418 
V.  Skinner                       II.  331 
Abrara  v.  Cunningham                       I.  162 
Abrams  v.  Pomeroy                         II.  502 
V.  Suttlcs                              II.  622 
Absolon  V.  Marks                             II.  440 
Acheson  r.  Fountain                             I.  16 
Ackermann  v.  Ehrenspergcr    II.  140,  399 
Ackland  v.  Pearco                     II.  490,  491 
A'Court  V.  Cross                               II.  654 
Active,  The                              II.  170,  176 
Adams  v.  Brackett                           I.  86,  88 
V.  Carver                               II.  467 
V.  Cordis                 I.  664  ;  II.  370 
V.  Darby         I.  537,  539,  542,  549 
V.  Frye                   II.  555,  556,  572 
b 


Adams  v.  Gregg  I.  325 

V.  Hardy  II.  121 

V.  Jones     I.  49,  298  ;  II.  132,  134 

U.King  1. 31 

V.  Lingard  II.  467 

V.  McGrew  II.  610 

V.  Oakes  II.  209 

V.  Otterback  I.  397 

V.  Robinson  I.  335 

V.  Rowan  II.  431 

V.Smith  1.221,261 

V.  Taylor  II.  630 

V.  Torbert  I.  382 

V.  Torry  II.  634,  651 

V.  Wilson  II.  509 

V.  Wordley        I.  1 95,  301 ;  II.  5 1 3 

Adams  Bank  v.  Anthony  I,  237 

V.  Jones  II.  444 

Addams  v.  Seitzinger  II.  662 

Adkins  v.  Blake  II.  92,  263,  275,  276 

Adle  V.  Metoyer  I.  229,  326 

Aflfilo  V.  Fourdrinier  II.  49 1 

Agan  I'.  M'Manus      I.  600,  612,  629,  632: 

II.  516 
Agawam  Bank  v.  Sears      I.  236;  II.  577 
V.  Strever   I.  268;  II.  517 
Agce  V.  Medlock  II.  437,  439 

Aggs  V.  Nicholson  I.  170 

Agnew  V.  Bank  of  Gettysburg  I.  515 

Agricultural  Bank  v.  Bissell     II.  406, 4 1 2, 

421 
Agricultural,  &c.  Co.  v.  Fitzgerald  II.  577 
Aikin  v.  Bailey  II.  634 

Ainslie  v.  Wilson  II.  93 

Airey  v.  Holmes  II.  630 

Albee  v.  Little  II.  603 


XIV 


INDEX  TO   CASES   CITED. 


Alcock  V.  Alcock  I.  149,  151  ;  II.  6 

V.  Hill  I.  240 ;  II.  240 

V.  McKain  II.  456 

Alday  v.  Jamison  II.  244 

Alden  v.  Barbour  I.  311  ;  II.  473 

Alderson,  Ex  parte  .  I.  336 

V.  Langdaie  II.  550,  573 

Aldis  V.  Johnson  I.  382,  508  ;  II.  120 

Aldrich  t;.  Cambell  II.  614 

V.  Grimes  I.  67,  75 

V.  Jackson     II.  37,  107,  187,  195, 

485,  600 

V.  Morse  II.  651 

V.Warren  1.51,189 

Aldridge  v.  Branch  Bank  I.  41,  49  ; 

II.  514 
Alewood  V.  Haseldon  I.  381 

Alexander  v.  Burchfield      I.  273  ;  II.  72, 

74,  85 

V.  Burnet  II.  634 

r.  Dennis  11.98,107,194, 

195,  207 

V.  Mackenzie  I.  120 

i;.  Oaks  I.  45 

r.  Strong  11.215,285 

V.  Thomas  I.  40, 

Alger  V.  Thatcher  I.  214 

Alivon  V.  Fumival  II.  358 

Allaire  v.  Hartshorne         I.  191,  223,  224 

Allan  V.  Mawson  I.  62 

Allen  V.  Avers  II.  448 

V.  Dundas  I.  161  ;  II.  83,  210, 

212,387 

r.  Edmundson  1.469,471,488 

i;.  Furbish  II.  524,  525,  527 

V.  Keeves  II.  69 

V.  Kemble  I.  641,  651  ;  II.  342 

V.  Kimball  II.  225,  530,  531 

V.  King  I.  223,  226,  537,  544 

r.  Merchants'     Bank    of    New 

York     I.  480  ;  II.  340, 345,  347 
V.  Miles  I.  310,  436,  437 

V.  Miller  II.  309 

I'.  Newberry  II.  439,  454 

r.  Rightmero  II.  119,  130,  138 

17.  Sawtelle  II.  641 

V.  Sea  F.  &  L.  Ass.  Co.       I.  24,  63 
r.  Smith  I.  311,  432 

c.  State  Bank     I.  231,  232  ;  II.  297, 
298,  302,  312,  313,  314 


Allen  V.  Suydam  I.  337,  346,  34? 

V.  Union  Bank  of  Louisiana    I.  662 

V.  Walker  II.  25 

V.  Watson  II.  318 

Allesbrook  v.  Roach  II.  476 

AUin  V.  Shadburne  II.  440 

Allison  V.  Pennington  II.  649 

V.  Purdy  II.  570 

AUnutt  y.  Ashenden  11.128 

Allstan  V.  Contee  II.  228 

Allston  V.  Allston  II.  233 

AUwood  V.  Haseldon  I.  446,  529, 

596,  610 

Almy  V.  Reed  11.  298,  302,  305 

Alner  v.  George  II.  51 

Alsop  V.  Goodwin  II.  506 

Alston  V.  Heartman  II.  450,  451 

V.  Jackson  II.  446 

r.  State  Bank  II.  663 

Alves  V.  Hodgson   I.  44  ;  II.  318,319,330 

Ambrose  v.  Hopwood  I.  306 

American  Bank  v.  Baker  I.  239,  242 

V.  Jenness         I.  264,  270 

Amherst  Academy  v.  Cowls  I.  202 ; 

II.  46,  52,  444,  453 

Ammidown  v.  Wheelock  II.  46 

u.  Woodman     1.385;  11.461 

Amner  v.  Clark  I.  56  ;  II.  329,  331 

Amory  v.  Mery weather  II.  418 

Amoskeag  Bank  v.  Moore    I.  582 ;  II.  534 

Manuf.  Co.  v.  Gibbs         I.  260 

Amsbaugh  y.  Gearhart  11.118 

Anchcr  v.  Bank  of  England       I.  1 7,  1 19  ; 

II.  22,  590,  598 

Anderson  v.  Anderson  I.  229 

V.  Bustecd  I.  273  ;  II.  79 

r.  Cleveland  I.  324,  374 

V.  Davis  II.  132 

V.  Drake     I.  424,  435,  441,  442, 

451,  453,  455 

V.  George  II.  239 

V.  Folger  I.  537 

r.  Hawkins   11.91,101,189,600 

r.  Hcnshaw  II.  201 

V.  Hick  I.  302 

V.  Robertson  II  608,  654 

t;.  Robson  II  298,  308 

r.  Van  Alen  II.  46 

V.  Weston        I.  41,  49;  II   10, 

489,  66J 


INDEX   TO   CASES   CITED. 


XV 


Anderson  v.  Wheeler  II.  364 

V.  Yell  II.  508 

Bridge  Co.  v.  Applegate  II.  290, 

292,  294 

Anderton  v.  Beck  I.  531 

Andover  v.  Grafton  I.  119 

Andrew  v.  Blachly  II.  68,  69 

Andrews  v.  Baggs  I.  303 

V.  Boyd  I.  590,  622 

V.  Carr  II.  374 

V.  Chadbourne  II.  9,  10 

r.  Creditors  11.318 

V.  Franklin  I.  40 

V.  Herriot   II.  318, 322,  327,  366, 

368,  387 

V.  Hoxie  I.  310 

V.  McCoy  I.  225 

V.  Planters'  Bank        I.  126,  140 

V.  Pond     II.  280,  318,  320,  324, 

337,  376,  378,  407,  434 

V.  Whcaton  I.  209 

Androscoggin  Bank  v.  Kimball         I.  115 

Angel  V.  Felton  II.  286,  293,  306 

Angell  V.  Ihler  I.  326 

Ankerstein  v.  Clarke  II.  447 

Anna  Kimball,  Cargo  of  the  Ship,   II.  169 

Anonymous  (2  Atk.  32)  I.  26 

(1  Brown,  Ch.  376)      II.  364, 

365 

(1  Camp.  492,  n.)  II.  16 

(Comb.  401)  1.282,283 

(Comb,  463)  II.  228 

(Cro.  Eliz.  68)  II.  223 

(Hardres,  420)  II.  391 

(iLd.Raym.)  1.449;  11.293 

(12  Mod.  345)     I.  634;  II.  41, 

497 

(12  Mod.  408)  11.154 

(12  Mod.  517)  II.  154 

(12  Mod.  564)  II.  209 

(F.  Moore,  122)  II.  214 

(1  Salk.  126;3id.71)  II.  255, 

263,  268,  269 

(Skin.  343)  II.  25 

(7  Taunt.  244)  II.  369 

r.  Harrison  II.  120 

V.  Stanton  I.  547 

V.  Ormston  I.  14 

Anson  r.  Bailey  I.  596 

Anthon  r.  Fisher  I.  152 


Antoine  v.  Morshead  I.  152;  II.  8 

Apgar  V  Hiler  I.  233,  235,  243 

Appleby  v.  Biddolph  I.  43 

Appleton  V.  Bascom  I.  243 

V.  Donaldson         I.  226  ;  II.  43 

V.  Sweetapple  1. 269, 378 ;  II.  72 

Aranguren  v.  Scholfield  II.  300,  303 

Arbouin  v.  Anderson   I.  183,  258  ;  II.  272, 

273,  437,  438 

Arcangelo  v,  Thompson  II.  491 

Archer  v.  Dunn  II.  377 

V.  Hale  II.  245 

V.  Putnam  II.  408 

V.  Ward  II.  577,  580 

Arden  v.  Sharpe  "I.  125 

Arey  v.  Stephenson  II.  651 

Ariadne,  The  II.  174 

Arlington  v.  Hinds  II.  452,  518 

Armani  v.  Castrique      I.  58  ;  II.  329,  589 

Armat  v.  Union  Bank  I.  231,  232  ; 

n.  100,  312 

Armfield  v.  Allport  I.  290 

V.  Tate  I.  75 

Armistead  v.  Armisteads  I.  310,  429 

V.  Brooke  II.  655 

r.  Philpot  II.  92 

Armitt  v.  Breame  I.  386 

Arms  V.  Ashley  II.  93 

Armstrong  v.  Caldwell  I.  310 

V.  Brown  II.  605 

v.  Christian!  I.  468,  470 

V.  Gay  I.  537,  538 

e.  Pratt  II.  611 

V.  Thruston      I.  365,  446,  470 

V.  Toler  II.  321 

Arnold  v.  Arnold  II.  645 

V.  Bainbrigge  II.  620 

V.  Bureau  II.  453 

V.  Camp  n.  179,  200,  202 

V.  Crane  II.  186 

r.  Downing  11.649,651,654 

V.  Johnson  II.  225 

V.  Jones        II.  560,  565,  577,  581 

V.  Lyman  I.  297  ;  II.  62 

V.  Mayor  of  Poole  I.  163 

V.  Revoult  II.  211,446 

V.  Rock  River  Valley  Union 

Railroad  Co.  II.  147 

Artcher  v.  Douglass  I.  235 

V.  Zeh  II.  161 


XVI 


INDEX  TO   CASES   CITED. 


Arundel  Bank  v.  Goble 
Ashby  V.  Ashby 

V.  James 
Ashford  v.  Robinson 
Ashley  v.  Gunton 
Ashton  V.  Freestun 

V.  Longes 

V.  Pye 


II.  240 

1.31 

II.  653 

II.  128,  139 

I.  494  ;  II.  246 

I.  328 ;  II.  236 

II.  466 

II.  236 


Ashurst  r.  Eoyal  Bank  of  Australia 

I.  153;  II.  5 

Aspinall  v.  Wake  I.  161  ;  II.  484 

Aspinwall  v.  Meyer  II.  437 

Astor  V.  Benn  II.  340 

Atherfold  t).  Beard  1.190 

Atkins  ;;.  Owen  II.  286 

V.  Scarborough  II.  639 

V.  Tredgold  II.  659,  660 

V.  Wheeler  II.  293 

Atkinson  v.  Brooks  I.  221, 223,  226  ;  II.  43 

V.  Elliott  II.  613 

V.  Hawdon  II.  550,  573 

V.  Manks  I.  45,  304 

Atlantic,  Brig  II,  173,  174 

Atlantic  de  Laine  Co.  v.  Tredick       I.  264 

Atlas,  The  II.  173 

Attenborough  v.  MacKcnzie  I.  229 

Attorney-General  v.  Life  &  Fire  Ins. 

Co.  I.  164,  166  ;  II.  494 

Attwood  V.  Griffin  I.  33 

r.  Mannings   I.  107,  120  ;  II.  489 

V.  Rattenbury  II.  439 

Attwooll  V.  AttwooU  II.  605,  607 


Austin  w.  Fuller  11.415,417 

V.  Harrington  II.  408 

T.  Imus  II.  377,  425 

V.  Latham  I.  489 

V.  Rodman  I.  541 

V.  Van  derm  ark  I.  141 

Australian  Royal   Mail  Steam  Nav. 

Co.  V.  Marzetti  I.  163 


Averill  v.  Field 
Avery  v.  Stewart 
Awde  V.  Di.xon 
Ayer  v.  Hawkins 
V.  Hutchins 
Ayers  v.  Richards 
Ayliff  V.  Scrimsheire 
Aymar  v.  Beers 

V.  Sheldon 


Aynsworth,  Ex  parte 
Ayre  v.  Van  Lieu 
Ayres  v.  Audubon 
V.  Hayes 
V.  Henderson 
V.  McConnel 
Ayrey  v.  Fearnsidea 
Ayton  V.  Bolt 


II.  537 

I.  385,  400,  402,  408 

L  113,  232;  IL  526 

IL  226,  653 

I.  264,  275,  279 

IL  649 

IL  532 

I.  264,  267,  269,  338, 

340,  343,  345,  377 

L  351  ;  II.  336,  339, 

340,  348,  372 

11.412 

IL  218 

IL  327 

n.393 

II.  635,  636 

II.  605 

L37 

11.651 


B. 


Atwater  v.  Townsend 

II.  359 

Babcock,  In  re    1.  229 

237 

326  ;  IL  250 

Atwell  V.  Grant 

1.641 

V.  Beman 

L  96 

Atwood  V.  Agricultural  Bank 

II.  646 

V.  Stono 

L137 

V.  Crowdie 

II. 

225,  230 

V.  Weston 

IL  361 

V.  Lewis 

IL  538 

Babson  v.  Webber 

U.  505 

r.  Vincent 

11.167 

Bachellor  v.  Priest     1. 

337, 

357,  358  ;  II. 

r.  Whittlesey 

IL  417 

209,  457,  544 

V.  Wright 

IL  466 

Bachus  V.  Richmond 

II.  460 

Aubert  v.  Walsh 

I] 

.  84,  220 

Backhouse  v.  Harrison 

I. 

258;  IL  187, 

Augusta,  The 

IL  174 

259, 

260,  272,  277 

Austen  v.  Halsey 

IL  166 

Backus  V.  Danforth 

L  408  ;  IL  45 

Austin  V.  Bcmiss 

IL  458 

V.  Minor 

II.  425 

i".  Birchard 

L51 

V.  Shipherd 

I 

580,  581,  589 

V.  Bostwick 

IL  654 

Bacon  v.  Brown 

II.  227,  228 

V.  Boyd 

II. 

518,  520 

V.  Dyer 

L  310,  432 

V.  Burns 

L45 

V.  Fitch 

L31 

V.  Curtis 

1.  224 

r.  Gray 

II.  633 

r  Foland 

11.  f,l7 

r.  Lee 

II.  402 

INDEX   TO    CASES   CITED. 


XVU 


Bacon  vj.  Page 

V.  Searles 

II. 

Badcock  v.  Steadinan 

Badeley  v.  Vigurs 

Badnull  v.  Samuel 

I.  245  ;  II. 

Bagley  v.  Buzzell 

Bagnall  ».  Andrews 

I.  539 ;  II. 

Bagster  v.  Earl  of  Portsmouth 

Bailey  v.  Adams 

V.  Bailey 

V.  Baldwin 

i>.  Bidwell   I. 

188, 189;  II 

V.  Cromwell 

V.  Day 

V.  Dozier 

I.  642, 

V.  Freeman 

II.  125, 

V.  Heald 

V.  Jackson 

V.  Knapp 

V.  Porter 

I. 

V.  Taylor 

[I.  549,  577, 

V.  Wakeraan 

Baillie  v,  Moore 

Bainbridge  v.  Wade 

;;.  Wilcocks            II. 

Baine  v.  Williams 

B.'^ird  r.  Cochran 

I.  126;  II. 

V.  Walker 

B-vker  V.  Arnold 

V.  Baker 

I.  155 

V.  Birch 

I. 

V.  Briggs 

I.  242,  246 

r.  Brown 

r.  Charlton 

r.  Draper 

V.  Gallagher 

V.  Haines 

V.  Marshall 

r.  Martin 

I.  229,  326 

r.  Morris 

I.  495, 

V.  Scott 

V.  Smith 

V.  Stackpoole 

II. 

T.  Townshend 

V.  Walker 

I.  199 

V.  Wheaton 

I.  275  ;  II. 

lialch  V.  Onion 

- 

Balcom  v.  Richards 

Vol.  l.—  B 

h 

I.  381 

218,  233 

I.  51 

11.441 

240,  246, 

533 

II.  246 

250,  466 

I.  149 

II.  533 

II.  649 

II.  247 

.  283,  493 

II.  .535 

I.  245 

643, 644 

129,  132 

II.  339 

II.  254 

11.471 

468,  469 

579,  580 

II.  471 

II.  184 

II.  131 

327,  341 

II.  228 

467,  470 

II.  641 

II.  467 

;  II  645 

587,  611 

;  II.  121 

II.  645 

I.  137 

II.  180 

I.  537 

II.  476 

I.  237 

;  II.  458 

499,  504 

II.  121 

II.  609 

223,  230 

I.  215 

;  II.  247 

215,  325, 

359,  360 

II.  489 

II.  658 


Baldwin  v.  Famsworth 

1.421 

V.  Kichardson 

I.  527 

V.  Kochford 

1.45 

Ball  V.  Allen 

I.  33  ;  II.  66 

Ballaiitino  v.  Golding 

II.  359 

Ballingalls  v.  Gloster    I. 

351 

;  11.372,463 

Ballingcr  v.  Edwards 

11.416,  428 

Ballou  V.  Spencer 

I.  140 

V.  Talbot 

I.  99,  121 

Balsbaugh  v.  Frazer 

II.  619 

Bamfield  v.  Tapper 

II.  656 

Banbury  v.  Lisset 

I.  45,  301 

Bancroft  v.  Andrews 

II.  629,  64.-) 

u.  Dumas 

II.  226 

r.  Hall 

I. 

478,479,  48S 

V.  McKnight 

I. 

224 ;  II.  437 

Bandel  v.  Isaac 

II.  403 

Bander  v.  Bander 

II.  425 

Bangor  v.  Warren 

II.  152 

Bank  v.  Hook 

I.  661,  662 

V.  Treat 

I.  252 

Bangs  V.  Hall 

II.  649 

V.  Mosher 

I. 

241 ;  II.  135 

V.  Strong 

I.  239 

Bank  v.  Arthur 

II.  408 

V.  Porter 

I.  634 

V.  Spell 

I.  594 

V,  Sullivan 

il.  654 

Commissioners  v.  Lafayette  Bank 

II   88 

Adams,  v.  Anthony 

I.  237 

V.  Jones 

II.  444 

Agawam,  v.  Sears 

I. 

236  ;  II.  577 

V.  Strever 

I. 

268;  11.  517 

Agricultural,  v.  Bissell   II.  406,  412, 

421 

of  Albion  v.  Smith    IL  516,  520,  521 

of  Alexandria  v.  Dyer  II.  634 

I'.  Swann  1.466,471, 

475,  476,  509 

of  America  v.  Woodworth      I  442  ; 

II.  547,  548 

American,  v.  Baker  I.  239,  242 

V.  Jenness        I.  264,  270 

Amoskoag,  v.  Moore   I.  582  ;  II.  534 

Androscoggin,  v.  Kimball         1.115 

Arundel,  v.  Goble  II  240 

Bangor,  v.  Hook  I.  661,  662 

V.  Treat  I.  252 

Belmont,  v.  Patterson  I.  36) 


XTUl 


INDEX   TO   CASES   CITED. 


Branch,  v.  Hodges 
V.  James 
T.  Peirce 


Bank  of  Bengal  v.  Fagan        I.  108,  272  ; 

II.  79,  272,  273 

V.  Macleod      I.  lOS  ;  II. 

272,  489 

of  Bennington  v.  Raymond     I.  337 

Boston,  V.  Hodges    I.  369,  370,  4 1 1 , 

414,  419 

I.  366 

I.  235 

I.  493 
of  Alabama  v.  Windham 

II.  644 

at  Mobile  v.  Tillman        II. 

291,  294,  297,  301 

of  Montgomery  v.  Gaffney 

I.  268,  359,372,  378,  382 

Brooklyn,  r.  Waring  1.596 

Cabot,  V.  Morton      II.  37,  186,  187, 

485,  486,  590,  600 

V.  Russell  I.  497 

Canal,  v.  Bank  of  Albany       I.  275, 

320,  321,  322  ;  II.  38,  284,  483, 

485,  590,  596,  599 

of  Cape  Fear  v.  Seawell  I.  470,  506 

V.  Stinemetz         I.  57 

Catskill,  V.  Messenger  I.  248 

T.  Stall  I.  125,  497 

Cayuga  Co.,  f.  Bennett    1.482,501, 

502 

V.  Dill  I.  593 

r.  Hunt       1.362,418, 

420,  421,  636,  644; 

II.  433 

r.  Warden    1.471,473, 

475,476,477;  11.348 

Central,  v.  Allen      I.  393,  404,  438, 

451  ;  II.  491 

r.  Curtis  II.  454 

V.  Davis  I.  369,  610 

V.  Willard         II.  242,  531, 

538,  539,  540,  541 

of  Brooklyn  v.  Lang 

II.  449 
of  Charlestown  r.  Chambers   I.  223 ; 

II.  437,  444 

Cbaatauque,  v.  Davis       I.  358  ;  II. 

442 

of  Chenango  v.  Hydo       II.  28,  444 

V.  Root  I.  502 

Chicopcc,  V.  Eager  I.  483 


Bank,  Chicopee,  v.  Chapin       I.  191,  221, 
223  ;  II.  44 
of  Chillicothe  v.  Dodge  II.  107 

Citizens',  v.  Walker  I.  498 

City,  V.  Cutter  I.  369,  370,  399, 

402,  403,  411,  643  ;  II.  213,  462 
City  of  New  Orleans,  v.  Girard 

Bank  I.  651 

Claremont,  v.  Wood     I.  235  ;  II.  250 

of  Columbia  v.  Fitzhugh  I.  397 

V.  Lawrence        I.  479, 

482,  483,  487,  489, 

495,  497,  498 

V,  Magruder       I.  397, 

495,  498 

T.  Patterson  I.  1 63 

of  Commerce  v.  Union  Bank        II. 

80,  482,  549,  590,  599,  601 

Commercial,  v.  Benedict         I.  231, 

232;  II.  100,298,301, 

302,  313,  314 

V.  Clark       I.  622,  626 

V.  Cunningham  I  229, 

326 ;  IL  250 

».  French  L  170,238; 

II.  449,  451 

V.  Gove  I  488 

r.  Hughes   I.  464,  537, 

632;  II.  71 

r.  King        I.  512,  518 

V.  Newport  Man. 

Co.  L  170 

V.  Norton     I.  106,  108 

r.  Routh  I.  60 

r.  Strong    I.  478,  482, 

488,  489,  490 

&c., ».  Hamer    1.419, 

435 

V.  Lum       II.  577 

of  Natchez  V.  Clait)ornc 

n.  445 

of  Penn. U.Union  Bank 

of  N.  Y.     II.  209 

of  the  Commonwealth  r.  Letcher 

IL  160,  203,  204 

V.  McChord 

II.  567 

Cumberland,!;.  Ilall       II.  559,  577 

at  Decatur  v.  Hodges     I.  642.  646  ; 

II.  497 


INDEX   TO   CASES   CITED. 


XIX 


Bank, Decatur,  v.  Spcnce  I.  110,  111 

Dedluun,  v.  Chu'kering    11.227,  232 
Dorclicster  &  Milton,  v.  New 

Eri<,'land  Bank  I.  480 

Dry   Dock,  v.  Am.    Life   Ins. 

Trust  Co.  II.  432,  433 

Eagle,  V.  Chapin       I.  515;  II.  358. 

491 

V.  Hathaway  1. 483,  484,  487 

of  New  Haven  v.  Smith 

11.37,  101,  189,306,  600 

East  Haddam,  v.  Scovil  I.  480 

Eastern,  v.  Brown  I.  495 

V.  Capron  II.  614 

East  Kiver,  v.  Gedney         I.  273  ; 

II.  74 

of  England  v.  Newman  I.  362  ; 

II.  158,  184,  185 

Erie  i'.  Gibson  I.  237,  238 

Exchange,  v.  Monteath  I.  109  ; 

II.  478 

Fall  River  Union,  v.  Willard   1. 337, 

348,  372 

Farmers',  v.  Brainerd        I.  659,  660 

V,  Butler    I.  480,  482,  483 

V.  Clarke  II.  652 

V.  Duvall   I.  367,  370,  373, 

511,512;  11.461,492,495 

V.  Gilson  II.  638 

V.  Reynolds,  I.  231,  232; 

11.101,246,297,  301, 

302,  304,  312,  313 

V.  Vanmeter    I.  537,  554, 

556,  560,  648 

V.  Waples  I.  585,  587 

&C.  V.  Battle     I.  480,  484, 

495,  497,  498 

V.  Catlin  II.  498 

V.  Harris  I.  494 

V.  Rathbone      I.  229, 

326 

Farmers  &  Mechanics',  v.  Kerchcval 

II.  137 

V.  Troy 

City  Bank  I.  169,  173 

Farmers  &  Mechanics',  of  Kent 

Co.  V.  Butchers  &  Drovers' 

Bank         I.  273  ;  II.  75,  76,  478 

Farmers',  of  Lancaster  v.  Whitehill 

II.  476,  496,  497 


Bank,  Farmers  &  Mechanics',  of  Mem- 
phis V.  White  II.  95 
Franklin,  v.  Cooper                  I.  616 
V.  Freeman  II.  67 
r.  Pratt     II   467,  469,  470 
Freemans,  v.  Perkins          I.  57,  643 
V.  Rollins       I.  236,  241  ; 
IL  242,  24.5,  533 
Frontier,  v.  Morse  II.  100, 103,  105, 
192,  193,  197 
Fulton,  V.  Beach                      II.  416 
V.  Phoenix  Bank       I.  222  ; 
II.  107,  283,  298 
of  Galliopolis  v.  Trimble         II.  375 
of  Genesee  v.  Patchin  Bank     I.  164, 
16.5,  166,  171 
of  Geneva  v.  Hewlett        L  490,  498 
Girard,  v.  Comly                       II.  522 
Gloucester,  v.  Salem  Bank      II.  99, 
101,  190,  195,  598 
V.  "Worcester        II.  238 
Grafton,  v.  Doe                        II.  642 
V.  Flanders                  I.  122 
V.  Hunt                     n.  193 
V.  Kent        L  235  ;  IL  515 
V.  Moore    I.  640,  642,  643 
V.  Woodward     I.  235 ;  II. 
529 
Grand,  v.  Blanchard         I.  369,  509 
Grand  Gulf,  r.  Archer            IL  433 
V.  Wood  IL  52 
Granite,  v.  Ayers      I.  362,  423,  446, 
448,  460,  488,  489,  528 
V.  Ellis                         II.  445 
Hallowell  &  Augusta,  v.  Howard 

IL91 

of  Hamburg  v.  Johnson      I.  47, 116 

V.  Wray  I.  1 22 

Harrisburg,  v.  Forster  U.  469 

Hancock,  v.  Joy  I.  81 

Hartford,  v.  Barry    L  173,  358,  359, 

385;  IL 209 

V.  Hart      L  478;  IL  492, 

594 

V.  Stedman      L  358,  483, 

509 

of  Hartford  Co.  v.  Waterman       II. 

630,  639,  640 

Housatonic,  r.  Laflin       1.466,471, 

473,  509.  510 


lA 


INDEX   TO   CASES   CITED. 


Bank  of  Illinois  v.  Brady  11.  336 

of  Ireland  v.  Archer         I.  285,  292 
v.  Beresford     1,229,326; 
II.  245,  249,  250,  515 
Jefferson  Co.,  v.  Chapman      II.  88, 
91,98 
of  Kentucky  v.  Garey       I.  641,  642 
V.  Hickey  I.310;II.  88 
V.  Parsley  I.  635 

V.  Sanders  I.  44 

V.  Thornsberry    II.  83 
Lancaster,  r.  "Woodward  1272,275, 
378;  II.  77,  83 
Lee,  V.  Spencer  I.  529,  610 

V.  Walbridge  II.  434 

Lewiston  Falls,  v.  Leonard       I.  495 
Lime  Rock,  v.  Macomber       II.  444 
r.Mallett  L  235;  II.  540 
of  Limestone,  v.  Penick    I.  290 ;  II. 
557,  465 
Lincoln  &  Kennebec,  v.   Hani  matt 
I.  369  ;  II.  516 
Lincoln  &  Kennebec,  v.  Page  1. 369  ; 
II.  516 
Louisiana,  v.  Bank  of  U.  S.   II.  281 
of  Louisiana  v.  Mansker  I.  488 

v.  Morgan  I.  555 

V.  Smith  I.  501 

V.  Toumillon      I.  483, 
498 
r.  "Watson  I.  498 

Louisiana  State,  v.  Ellery        I.  499 
r.  Rowel         I.  483 
V.  Orleans  Naviga- 
tion Co.     II.  275 
of  Louisville??.  Summers  II.  93, 294, 
303 
Maine,  v.  Butts  II.  412,  421 

V.  Smith  I.  370,  570 

Maiden,  v.  Baldwin  I.  439,  440 

of  Manchester  ».  Bartlctt  1.238 

Manchester,  v.  Fellows     1.412,413, 
414,  482,  483,484,510, 
513,  514,  515  ;  II.  462 
V.  Slason      I.  497,  635  ; 
II.  348,  452 
r.  "White  I.  510 

Manufacturers',  v.  Cole    I.  239  ;  II. 
444, 445 
&c.  I'.  Winship    I.  1,32 


Bank  of  Marietta  v.  Pindall  II.  358 

Marine  &  Fire  Ins.,  v.  Jauncey       I. 

290,  335 

of  the  City  of  New  York,  v. 

Clements  II.  478 

Mariners',  v.  Abbott        I.  235,  241, 

246;  n.  519 

Massachusetts,  v.  Oliver  I.  501,  502 

Mechanics',  v.  Bank  of  Columbia 

L  94,  95 
V.  Earp  I.  104,  105 

V.  Griswold  I.  529, 

562,  566,  632 
V.  Hildreth  I.  146 

V.  Merchants'  Bank 

I.  368,  373 

V.  Minthome  I.  371 

V.  N.  Y.  &  N.  H.  R.  R. 

Co.     L  108,  119;  IL 

33,34,  35,  115,  116 

Mechanics',  &c.  r.  Compton    I.  497, 

493 

r.  TowTisend  I. 

427 

&  Farmers',  v.  Schuyler 

L  115,386;  II.  11 

of  Memphis  v.  "White      II.  643,  644 

Merchants',  v.  Birch  I.  501 

V.  M'Intyre  II.  590 

V.  Rawls  II.  620 

V.  Spalding  11.  90 

V.  Spicer    I.  23,  36 ;  II. 

16,  58,  72,  73 

Merrimack  Co.  v.  Brown         I.  241, 

595 ;  II.  223 

of  the  Metropolis  v.  Jones      II.  468 

of  Michigan  v.  Ely     I.  293, 294, 296, 

298 

Michigan,  t>.  Leavenworth         I.  241 

State,  V.  Peck  I.  299 

Middletown,  v.  Jerome  II.  493 

of  Missouri  v.  Hull  II.  467,  470 

V.  Phillips  I.  232  ; 

n.  525 

v.  "Wright  I.  664 

of  Mobile  r.  Hall  L  221,  225 

Mohawk,  r.  Broderick     I.  271 ,  554  ; 

II.  58,  59,  68,  69,  71,  72 

V.  Corey  I.  222,  226 ; 

IL78 


INDEX   TO   CASES   CITED. 


XXI 


Bank,  Mohawk,  v.  Van  Home        II.  247 
of  Monroe  v.  Strong  II.  420 

Montgomery  Co.  v.  Albany  City 

Bank  I.  481  ;  II.  209 

Montgomery  Co.  v.  Marsh      I.  490, 

498 

of  Montgomery  Co.  v.  Walker        I. 

326;  II.  250 

of  Montpelier  v.  Dixon  I.  237  ; 

II.  250 

Mount  Vernon,  v.  Holden       I.  478, 

482 

Narragansett,  v.  Atlantic  Silk  Co. 

I.  167 

National,  v.  Eliot  Bank       II.  61,  62 

r.  Norton  1.146,147 

of  Newbury  v.  Rand  II.  445 

New  England,  u.  Lewis    1.411,413; 

II.  462 

N.  H.  Savings,  v.  Colcord      I.  241, 

242 

v.EIa  I.  241;  II.  245 

New  Haven  County,  v.  Mitchell    II. 

491,  496 

New  Orleans,  v.  Harper    I.  539,  540 

557,  596,601,  604,  619 

N.  Y.  State,  v.  Fletcher  II.  162 

New  York  &  Virginia,  &c.  v.  Gibson 

I.  189,  291,330,332 

of  Niagara  v.  M'Crackeu  II.  88,  98, 

604 

».  Rosevelt  11.  91 

North,  V.  Abbot        I.  311,  369,  370, 

432,439 

of  North  America  v.  Barriere  1. 381, 

519 

V.  M'Call    II.  366 

V.  M' Knight       I. 

395,  507 

V.  Meredith       II. 

226 

V.  Pettit        I.  507 

V.  Vardon    I.  507 

of  North  Carolina  ».  Bank  of 

Cape  Fear         I.  310,  429,  431 

North  Hampton,  v.  Balliet       II.  36 

V.  Pepoon     I.  171, 

172;  II.  8,  220 

Northern,  r.  Farmers'  Bank    I.  231, 

232;  II.  100,  313,314 


Bank,  Northern,  of  Ky.  v.  Lcverick  11.  298, 

307 

North  River,  v.  Aymar  I.  108 

Norwich,  v.  Hyde  I.  28  ;  II.  12 

Onondaga  Co.,  v.  Bates    I.  640,  641 

Ontario,  v.  Liglubody  II.  192 

V.  Petrie  I.  401,  476 

V.  Schcrmerhorn      II.  433 

V.  Worthington         I.  224, 

285,  293,  294 

of  Orange  Co.  v.  Colby        II.  333, 

336,  351 

Oriental,  v.  Blake     I.  364,  501,  526 

of  Orleans  v.  Merrill  I.  26 

V.  Whittemore       I.  455, 

456,  457 

Oswego,  V.  Knower  I.  587 

Otsego  Co.,  V.  Warren     I.  362,  595, 

620,  636,  646 

Oxford,  ».  Davis  I.  337 

V.  Haynes    I.  238;  II.  117, 

119, 137 

V.  Lewis      L  241  ;  IL  241, 

242,  245,  246,  250,  533 

Pacific,  V.  Mitchell  II.  219 

Paterson,  v.  Butler  I.  491,  499 

Philadelphia,  v.  Newkirk  I.  38 

Phoenix,  r.  Hussey    1.57,314,642-, 

11.324 

Planters',  v.  Bivingsville  Manuf. 

Co.  II.  434 

r.  Bradford  I.  494 

V.  Markham  I.  419 

V.  Sellman  II.  533 

V.  Sharp  I.  164 

V.  Snodgrass    IL  412,422 

V.  Stockman  II.  228 

V.  White  I.  501 

of  Port  Gibson  v.  Baugh         I.  145 

Portland,  v.  Brown  II.  228 

of  Poughkeepsie  v.  Hasbroack 

1.224 

Prescott,  V.  Caverly    I.  79, 338, 340, 

342,  345  ;  IL  484,  490,  519,  589 

Quinsigamond,  v.  Hobbs         II.  421 

Real  Estate,  v.  Bizzell      I.  638  ;  II. 

499 

of  the  Republic  v.  Baxter       I.  273  ; 

II   77 

V.  Carrington    I  223 


S.XU 


INDEX   TO   CASES   CITED. 


Bank  of  Ilcchester  v.  Bo  wen     I.  125, 140 

r.  Gould      1.470,471, 

473,  475,  476 

r.  Gray        1.351,634, 

635,  636,  640;  11.319,342 

».  Monte.^th     1.92,132 

Rockingham,  v.  Claggett       II.  455 

of  Rome  v.  Village  of  Rome    II.  35 

Royal  British,  v.  Turquand      II.  35 

Royal,  of  Scotland,  Ex  parte     II.  50 

V.  Cuthbcrt      II. 

360,361,363 

Ruckersville,  v.  Hemphill       II.  607 

of  Rutland  v.  Buck    I.  226  ;  II.  27, 

28, 445 

of  St.  Albans  v.  Farmers',  &c.  Bank 

II.  589,  590 

V.  Gilliland       I.  128, 

221 

V.  Scott  II.  412 

Salem,  v.  Gloucester  Bank     II.  38, 

90,  101,  186,  189,  477 

of  Salina  v.  Babcock  I.  222 

of  Sandusky  v.  Scoville  I.  221 

Savings,  u.  Bates      1.223,396,416 

of  Scotland  v.  Hamilton  I.  347 

Seneca  Co.,  v.  Neass       I.  432,  482, 

490,  498,  645 

T.  Schermcrhorn   II.  434 

Seventh  Ward,  v,  Hamick      I.  513, 

515,  518;  II.  244 

Silver  Lake,  v.  North  II.  358 

Skowhegan,  r.  Baker      II.  445,  453 

South  Carolina,  v.  Case  I.  131 

of  S.  Carolina  r.Flagg    1. 310,  432, 

435, 436 

r.  Herbert       1.115; 

II.  7 

V.  Humphreys  I.  146 

V.  Knotts  II.  638 

V.  M'Willie       I.  115 

V.  Myers    I.  561,  567, 

II.  245,  247,  248,  533 

Springfield,  v.  Merrick    II.  146,  540 

Stamford,  v.  Benedict  II.  228 

State,  V.  Acrsten  II.  100,  312 

V.  Ayers  I.  480,  497 

V.  Bowers  I.  656 

V.  Byrd  II.  632 

V.  Coqiiilhird  II.  406,  428 


Bank,  State,  r.  Cowan  11.  412,  422 

V.  Croft  n.  7 

V.  Fearing  II.  212 

V.  Hennen  U.  488,  499 

V.  Hurd  I.  369,425;    II.  152 

516 

V.  Napier  I.  436,  437 

V.  Rodgers       I.  656 ;  H.  434 

V.  Seawell  II.  635 

V.  Slaughter  I.  483,  502 

V.  Smith  I.  393 

V.  Van  Horn  II.  88 

r.  Watkins  I.  238 

V.  Wilson  II.  245 

of  Indiana  v.  Hayes        I.  641 

of  Steubenville  v.  Hoge  II.  245 

Strafford,  v.  Crosby   I.  240  ;  II.  240, 

533 

Suffolk,  V.  Worcester  Bank    II.  394 

Sussex,  V.  Baldwin    I.  357,  358, 359, 

421,  425,  470,  511,  512,  513,  514, 

516,  589,  596,  600,  601,  604,  619 

of  Syracuse  v.  Holiister    1.419,  435 

Taunton,  v.  Richardson  I.  585,  589  ; 

II.  516 

of  Tennessee  v.  Barksdalo    II.  118, 

126 

V.  Johnson  I.  254 

Ticonic,  v.  Johnson  II.  421 

V.  Stackpole  I.  635,  642,  644 

Tombeckbee,  v.  Dumell   I.  146, 148, 

312 

V.  Stratton         II.  250 

of  Troy  v.  Topping  I.  198 

Troy  City,  v.  Lauman  II.  484 

Ulster  Co.,  v.  McFarian  I.  294, 296, 

298,  299  ;  II.  109 

Union,  v.  Brown  I.  497 

r.  Cnrr  II.  564 

r.  Ellicott  11.91 

V.  Fowlkcs  I.  639,  646 

V.  Grimshaw         T.  504,  596, 

^9<^   600,  622 

V.  Hnll  II.  247 

V.  Hyde         T.  499,  576,  582, 

642,643,647;  11.329,499,516 

V.  Lea  I.  499 

V.  Mngrndcr  I   591 

V.  Oslmrne  II.  301 

I'.  Stoker  I.  497 


INDEX   TO    CASES   CITED. 


XXIIJ 


Bank,  Union,  v.  Warren 
r.  Willis 


II.  298,  299, 

301,  31.3 

I.  363;  II.  121, 

124,  520 

of  La.  ».  Coster  II.  109, 

132,140 

of  Tenn.  75.  Smiscr       11.153 

of  United  States  v.  Bank  of  Georgia, 

II.  99,  186,  188,  195,  196,  203, 

285,  590,  594,  596,  599,  600 

V.  Binney      I.  132, 

133 

V.  Carneal     I.  435, 

436,  437,  472,  495,  496,  497,  498 

V.  Cliapin      11.371 

V.  Corcoran    I.  484, 

495, 496 

V.  Daniel        I.  642, 

660;  11.154 

r.  Davis  I.  514 

r.Donnally  11.318, 

354,356,366,383 

r.  Dunn        II.  468 

V.  Ellis  I.  596 

T.  Fleckner     I.  173 

-  V.  Goddard      I.  515 

V.  Hatch         I.  494  ; 

n.  239,  240,  245,  492,  533 

V.  Lane  I.  490 

V.  Leathers     I.  601, 

620,  643  ;  II.  499 

V,  Lyman       I.  621, 

622;  IL  451 

r.  Merle        I.  488, 

509,  510 

V.  Norwood    1.470, 

483 

V.  Owens      II.  408, 

434 

V.  Russel      II.  550, 

581 

r.  Sill      L  231,  232; 

li.  100, 258,  287,  293,  298,  312, 314 

V.  Smith  I.  309, 

311,431,432 

V.  Southard    I.  596, 

601,606,  612,619 

V.  United  States 

I.  651,  658.  662; 

II.  220,  442 


Bank  of  United  States  v.  Waggener 

II.  406,  408,  434 

of  Utica  V.  Bender    I.  490,  49 1.495 

V.  Davidson         I.  493,  495 

t;.  DeMott  1.490,491 

V.  Ganson  II.  445 

V.  Hillard  II.  469 

V.  Ives        II.  240,  245,  533 

V.  Phillips     L494;  11.421 

T.  Smedes  L  377,  381 

V.  Smith   I.  358,  410,  435; 

11.442 

V.  Wager     I.  411  ;  II  412, 

421 

of  the  Valley  v.  Strihling         II.  40* 

Veazie,  v.  Paulk  II.  427,  461 

V.  Winn      I.  411,  413,  414  ; 

II.  68,  72,  462 

of  Vergennes  v.  Cameron       I.  128, 

141,  230,  367,  610,  620,  636,  646 

Vermont  State,  v.  Porter        II.  364 

of  Virginia  v.  Ward        I.  231,  232  ; 

II.  101,  297,  312,313 

Waldo,  V.  Lumbert  I.  125 

Warren,  v.  Suffolk  Bank         I.  480 

Washington,  v.  Prescott        II.  225 

V.  Shurtleff       II.  140, 

143,  399 

of  Washington  v.  Triplett       I.  337, 

396,  397,  399  ;  II.  324,  340,  342 

Watervliet,  v.  White         I.  96,  170  ; 

U.  442,  595 

West  Branch,  v.  Fulmer  I.  523 

V.  Moorehead   II.  223 

Western,  v.  Kyle  II.  505 

Westminster,  v.  Wheaton        I.  271  ; 

IL68 

of  Wilmington,  &c.  v.  Cooper  I.  31 1, 

394, 432 

r.  Simmons    II.  247 

Windham,  r.  Norton        I.  373,  443, 

460,  461,  463 

Woodstock,  V.  Downer  II.  145 

Worcester,  v.  Wells         II.  340,  342 

Worcester  Co.  v.  Dorchester,  &c. 

Bank  L  115,  189,  232,  259; 

II.  278,  280,  2S1,  282 

Banks  v.  Colwell  L  376  ;  II.  604 

f.  Dixon  n.  301,. 305 

V.  Eastin  II.  209 


XXIV 


INDEX   TO   CASES   CITED. 


Bann  r.  Dalzell 
Banorgee  v.  Hovey 
Barbarin  v.  Daniels 
Barber  v.  Backhouse 
V.  Gingell 

V.  Gordon 
V.  Minturn 
Barbour  v.  FuUerton 


n.  396 
I.  296,  29S 
n.  456 
I.  207 
I.  92,  101  ;  II.  196, 
489,  594 
II.  532 
II.  326 
I.  269,  270 
Barclay,  Ex  parte   I.  503  ;  II.  164,  203,  234 


V.  Bailey 
V.  Gooch 
V.  Kennedy 
».  Walmsley 
T.  Weaver 
Barelli  v.  Brown 
Barger  v.  Durvin 


I.  418,  419 
II.  154 
n.  425 
II.  428 

I.  584,  587 

II.  161 

II.  654.  657,  661 


Baring  v.  Clark     I.  314  ;  U.  220,  456,  488 


V.  Lyman 
Barkalow  v.  Johnson 


I.  297  ;  II.  109 

I.  596,  600,  601, 

603,  619 

II.  638 

I.  494 


Barker  v.  Cassidy 
V.  Clark 

V.  Grout  II.  51 

v.  Hall  I.  480 

V.  M'Clure  I.  239 

V.  Mechanic  Ins.  Co.  I.  97.  164, 
165,  169,  170 
V.  Parker  I.  401,  456,  461,  592 
V.  Prentiss  I.  195  ;  II.  467,  469, 
470,  518,  519,  521,  525 
V.  Sterne  1.49  ;  II.  12,  342 

V.  Talcot  I.  156.  157 

V.  Vansommcr  II.  408 

Barlow  v.  Bisliop         I  78,  79,  80  ;  II.  21 1 


V.  Broadhurst 

L  38 

V.  Flemming 

n.  522 

V.  Planters'  Bank 

I.  385,  401 

Barnard  v.  Gushing          II. 

145,  146, 541 

V.  Flint 

L279 

V.  Planters'  Bank 

IL  495 

V.  Young 

11.409 

Barnes  v.  Foley 

n.  315 

V.  Gorman 

145 

V.  Ilcdley 

II.  420 

V.  Modisett 

n.  446 

V.  Reynolds 

I  501 

V.  Trompowsky 

II.  480 

V.  Worlich 

II.  422 

narnet  r.  Gffermun 

L  178 

Barnet  v.  Skinner  I.  251 

V.  Smith  I.  273,  282,  283,  285, 

301  ;  U.  59,  74,  75,  85,  86 

Barney  ».  Bliss  11.  513 

V.  Earle  I.  221 

V.  Grover  I.  244 

V.  Newcomb  I.  170,  297,  298  ; 

II.  358,  471 

Barnum  v.  Barnum  I.  178,  200 

Barnwell  v.  Mitchell  I.  492 

Barough  v.  White    I.  265,  268,  376,  379  ; 

II.  393,  471,  643 

Barr  v.  Baker  I.  209 

Barrell  v.  Benjamin  II.  319 

Barret  v.  Evans  I.  4S3 

i;.  Thorndike  II.  582 

Barrett  v.  Allen  I.  400 

V.  Barrett  II.  354,  446 

V.  Charleston  Bank         I.  562,  563 

V.  Deere  II.  209 

r.  Goddard  II.  166 

V.  Hyde  L  213 

V.  Lewis  II.  230 

V.  Swann  I.  128 

V.  Union  M.  F.  Ins.  Co.  II.  50 

Barreto  v.  Snowdeu  II.  411 

Barrick  v.  Austin         I.  228,  256  ;  11  445 

Barriere  v.  Nairac  II.  45,  52 

Barrington  v.  Bank  of  Washington  II.  576 

Barron  v.  Howe  II.  162 

Barrow  v.  Shields  II.  641 

V.  West  II.  387 

Barrows  v.  Lane  II.  121 

Barry  v.  Crowley  I.  637 

T.  Morse  I.  584  ;  II.  25 

County  V.  McGlothlin  II.  451 

Barstow  v.  Hiriart  I.  472 

Bartlctt  V.  Benson  II.  31 

V.  Emery  I.  68 

V.  Knight  II.  323 

V.  Marshall  II.  393 

V.  Mayo  II.  151 

V.  Smith  II.  332 

r.  Williams  11.411 

Barton  (•.  Baker  1529,561,565 

V.  Tattershnll  II.  629 

V.  Wilkins  II.  504 

Biirtrum  v.  Caddy  I.  270  ;   II.  219 

Bartsch  v.  Atwatcr    II.  349,  359.  364,  165 

Bascom  r.  Young  I.  125 


INDEX   TO   CASES   CITED. 


XXV 


Bashford  v.  Shaw 
Baskins  v.  Wilson 
Bass  V.  Bass 
V.  Clive 

Bassett  v.  Dodgin 

V.  Wills 
Bateman  v.  Joseph 
V.  Finder 
Bates  V.  Kempton 


i;.  Pricket 
Bathe  v.  Taylor 
Battley  v.  Lewis 
Batty  V.  Carswell 

V.  Lloyd 
Baucum  v  Streater 
Baugli  V.  Ramsey 
Bawden  v.  Howell 
Baxter  v.  Duren 
V.  Graves 
V.  Little 
V.  Penniman 
Bay  V.  Church 


U.  139,  U2 

n.  38,  467 

II.  647 

L  321  ;  n.  99,  196,  482, 

484,  590 

I.  186 

L  311 

I.  .527 

II.  660 

L  179  ;   II.  54, 

446,  645 

IL  9 

IL  550,  568,  574 

I.  143 

L  115;  II.  7 

II  413 

II.  639 

II.,  507 

L  131  ;  II.  440 

IL  38,  39,  590,  602 

L  551 

L  262;  II.  609 

IL  659 

I.  643 


V.  Coddington  I.  225;  IL43,  268,  275 


V.  Gunn 
V.  Tallmadge 
Bayard  v.  Lathy 
V.  Sliunk 

Bayley  v.  Greenleaf 
V.  Taber 
V.  Wynkoop 
Baylis  V.  Ringer 
Beach  v.  Bates 
V.  King 
V.  State  Bank 

V.  Vandewater 
Beachboard  v.  Luce 
Beadle  v.  Hunter 
Beak  v.  Beak 

Beale  ».  Parrish  (20  N.  Y.) 
V.  Parish  (24  Barb.) 
Bealey  v.  Greenslade 
Beals  V.  Peck 

V.  See 
Beaman  v.  Russell 
Bean  r.  Arnold 

P.  Briggs 


I   74 

IL  240 

I.  294 

IL  89.  103,  105,  157, 

159,  163,  193 

II.  167 

I.  49;  II.  89,  514 

II.  227 

IL  397,  398 

II.  141 

L  154 

L  124,  140,  142, 

298;  IL  109 

L  117 

IL  305 

II.  640 

I.  144 

I.  532,  628 

I.  628 

II   656 

L  471,  473,  501,  502 

L  150;  II.  6 

IL  577,  579 

I.  579 

II.  330 


Bean  v.  Jones  I.  246 

v.  Keen  IL  291,  298,  305,  307 

V.  Morgan  I.  85 

V.  Parker  I.  232 

Bearce  v.  Barstow  II.  415 

Beard  v.  White  U.  506 

Buardcsley  v.  Baldwin  I.  39 

Beardslcy  v.  Warner  I.  237  ;  II.  239, 

242,  243,  244,  247 

Beattie  v.  Lett  II.  443 

Beatty  v.  Clement  II.  662,  663 

Beauchamp  v.  Cash  I.  473 

V.  Mudd  II.  645 

V.  Parry  II.  471 

Beaumont  v.  Greathead      I.  245  ;  II.  217, 

318 

V.  Reeve  I.  214 

Becher  v.  Jones  II.  399 

Beck  V.  Beck  II.  650 

V.  Roblcy      I.  275  ;  II.  95,  215,  233 

V.  Searson  II.  640 

V.  Thompson      I.  394,  596,  597,  61 1 

Beckett  V.  Selover  II.  645 

Beckham  v.  Drake  I.  103 

V.  Knight  I.  103 

Beckley  v.  Munson  I.  243 

Beckwith  v.  Angell     II.  120,  121,  137,  520 

V.  Conall     I.  258  ;  II.  255,  256, 

257,  259,  271 

V.  Farnum  IL  41,  157,  163 

V.  Smith       I.  486,  510,  512,  518 

V.  Union  Bank  IL  614 

Becnel  v.  Tournillon  I.  497 

Bedford  v.  Deakin      I.  135,  250  ;  II.  154, 

234,  246 

V.  Hickman  I.  480 

Bedford  Com.  Ins.  Co.  v.  Covell         L  93 

Bediiigfield  v.  Ashley  II.  413 

Bedo  V.  Sander.son  IL  406 

Beebe  v.  Brooks  I.  268 

V.  Dudley  I.  238 

V.  West  Branch  Bank    II.  242,  244 

Beech  v.  Jones  IL  458 

Beeching  v.  Gower        I.  440,  479;  II.  72, 

73,  85,  191 

V.  Westbrook  II  542 

Beekman  v.  Connelly         I.  601,  604,  619 

V.  Wilson  IL  455 

Beeler  v.  Young  I.  68 

Beeley  v.  Wingfield  I.  215 


iLxrl 


INDEX   TO   CASES   CITED. 


Beemun  c.  Duck         I.  321,  322  ;  II.  4S2, 

590,  591,  593 

Beesley  v.  Crawford  II.  606 

Beete  v.  Bidgood  II.  406,  525 

Beicher  v.  Lloyd  II.  618 

V.  Smith  II.  133,  136 

Belden  v.  Lamb  I.  490,  492  ;  II.  429 

Belknap  v.  Davis  II.  590 

Bell  V.  Banks  I.  239 

T.  Bruen  IL  324 

p.  Carey  II.  605 

V.  Crawford  II.  620,  654 

i;   Davidson  II.  460 

U.Davis  11617,620 

V.  Frank  is  I.  617 

V.  Gardiner  I.  202 

r.  Hagerstown  Bank    I.  482,  483,  495 

V.  Huggins  I.  210 

V.  Moore  II.  298,  301 

V.  Morehead  II.  30 

V.  Morrison  II.  649,  651,  657 

V.  Moss  II.  178 

V.  Norwood         II.  220,  456,  460,  488 

V.  State  Bank  I.  483 

V.  Welch  IL  131 

V.  Young  II.  298,  304,  305,  307 

Bellamy  v.  Marjoribanks  IL  61,  65 

Bellasis  v.  Hester  I.  348,  384 

Bellemire  v.  Bank  of  United  States  I.  480 

Bellicvre  v.  Bird  I.  366,  449,  453 

Bellows  V.  Lovell  I.  237  ;  II.  240 

Belmont  v.  Coleman  II.  494 

Bank  v.  Patterson  I.  361 

Belshaw  v.  Bush  IL  150,  154,  308 

Beltzlioover  v.  Blackstock    1. 189  ;  IL  258, 

275,  276 

Bemis  v.  State  II.  621 

Benedict  v.  Caffe        I.  446,  529,  563,  566 

Benham  v.  Bishop  I.  74,  75 

r.  Mornington  IL  334 

Benjamin  v.  Benjamin  II.  210 

r.  McConnell  L  243;  II. 

552,  562 

Bennett  v.  Bcvard  II.  628 

T.  Dowling  II.  466,  467 

V.  Farnell     I.  32,  33  ;  II.  50,  592 

V.  Herring  IL  639 

V.  Pound  IL  49,  449 

V.  Williamson  II.  633 

Bennion  v.  Davison  IL  487 


Eennison  v.  Jewison  II.  332 

Benoist  v.  Creditors     I.  537,  538,  539,  582 

Benson  v.  RLirshal  II.  472 

V.  Smith  I.  208 

V.  White  I.  427,  428 

Bent  V.  Baker  II.  465,  469,  471 

Benthall  v.  Judkins  II.  124 

Bentinck  v.  Dorrien     I.  291,  328,  329,  352 

Bentley  v.  Bradley  IL  513 

V.  Northouse  II.  353,  357 

Benton  v.  Gibson       I.  378,  381,  382,  383, 

520;  IL  120 

Berghaus  v.  Alter  IL  228 

Beikley  v.  Cannon  I.  151 

Berksliire  Bank  v.  Jones     I.  311,  432,  435, 

436,437,580;  11.348 

Berly  v.  Taylor  I.  300 

Bernard  v.  Barry  II.  334,  499 

V.  Mullott  IL  619 

Berrien  v.  Wright     II.  338,  377,  379,  635 

Berry  v.  Alderman  I.  189  ;  II.  493 

V.  Bates  II.  528 

V.  Berry  II.  565 

V.  Griffin  II.  153,  160,  162 

V.  Robinson  I.  381,  520 

V.  Wisdom  IL  536 

Bertrand  v.  Barkman  I.  189,  221,  224,  225 

Besancon  v.  Shirley  I.  47 

Besant  v.  Cross  II.  522 

Best  V.  Givens  I.  72,  75 

Bestor  v.  Phelps  II.  484 

V.  Walker  II.  244,  484 

BetJiam  v.  Benson  II.  489 

Bethunc  v.  Dozier  I.  239 

I.-.  McCrary  I.  191 

Betsy  &  Khoda,  The  IL  172 

Bctts  V.  Gunn  II.  607 

V.  Mitchell  I.  155 

Bevan,  Ex  parte  II.  425 

».  Eldridge  L412 

V.  Hill  II.  84 

V.  Waters  II.  491 

Bcvcridge  v.  Burgis  1. 492,  528 

Beverley  v.  Lincoln  Gas  Light  & 

Coke  Co.  L  163 

Bibb  V.  Peyton  I.  622,  626 

Bickerdike  c.  Bollman  I.  533,  534,  535,  536, 
540,  543,  .549,  551,  554,  630  ;  II.  71,  498 
Birkerton  r.  Burrell  I.  118 

Bickford  J-.  Gibbs  II.  125,  137 


INDEX   TO    CASES   CITED. 


XXVii 


Bicknall  v.  Waterman  II.  41,  102,  157, 

163 

Biery  v.  Haines  II.  553 

Bigelow  V.  Collamore  II.  24 

V.  Coltoa  II.  123 

V.  Denison  1. 101 

V.  Grannis  I.  76 

Bigg's  Case  I.  163  ;  II.  18,  584 

Biggs  V.  D wight  II.  226,  231 

V.  Lawrence  I  321 

Bignold,  Ex  parte  I.  447,  610 

V.  Waterhouse  I.  502 

Bilbie  i;.  Lumlcy  I.  607 

Biles  V.  Commonwealth  II.  586 

Bill  V.  Porter  II.  154,  157,  218 

Billing  (;.  Devaux  I.  285,  287,  289  ;  II.  56 

Billings  V.  Billings  II.  507 

V.  Collins  I.  256 

U.Hall  11.631 

V.  Jane  II.  48,  449 

Billingsley  u.  Dean  II.  414 

Billingsly  v.  Billingsly  II.  394 

V.  Cahoon  II.  392 

Billiot  V.  Robinson  II.  622 

Bingham  v.  Stanley  I.  189  ;  II.  283,  487 

Binney  v.  Plumley  II.  452 

Binnington  v.  Wallis  I.  214 

Binstead  v.  Buck  II.  264 

Birch  V.  Tebbutt  II.  228 

Bircher  v.  Payne  II.  528,  538 

Birckhcad  v.  Brown  I.  298;  II.  109,  134 

Bircleback  v.  Wilkins  I.  228,  256  ;  II.  519 

Bird  V.  Adams  II.  662 

V.  Caritat  II.  327,  369 

V.  Gammon  II.  652 

V.  LeBlanc  I.  576,  578 

V.  McCalop  I.  483,  498 

V.  McElvaine  I.  303 

V.  Pierpont  II.  361 

Bird  V.  Moreatt  II,  330,  332 

Birkett's  Case  II.  584,  586 

Birkley  v.  Presgrave  I.  251 

Birley  ?7.  Gladstone  11.169 

Birt  V.  Kershaw  II.  467 

Bisbing  v.  Graham  11.  298,  309 

Biscoe  V.  James  II.  658 

V.  Jenkins  II.  658 

r.  State  11.619 

V.  Stone  II.  654 

Bishop  ?.'.  Chambre  II.  550,  568,  577 


Bishop  V.  Church  I.  25^ 

V.  Dexter  I.  381 ,  382,  520  ;  II.  504 

V.  Hayward  II.  457,  459 

V.  Rowe    I.  329  ;  II.  155,  234,  436 

V.  State  II.  588 

V.  Tucker  II.  603 

r.  Williamson  11.315,316 

V.  Yeazle  II.  244 

».  Young  I.  350 

Bissell  V.  Lewis  II.  347 

Bizzell  V.  Stone  II.  611 

Black  V.  Peele  I.  325 

V.  Schooler  II.  223 

V.  Smith  II.  91 

V.  Whitall  II.  607,  609 

V.  Zacharie  II.  150,  154 

Blackl)urn  v.  Jackson  II.  648 

Blackburne,  Ex  parte  11.41,  86,  105,  155, 

184,  185,  193 

Blackhan  v.  Dorcn  I.  534,  539,  546  ;  II. 

250 

Blackie  v.  Ridding  IL  295,  296,  310 

Blackman  v.  Green  I.  21 

Bl.ackstone  Bank  v.  Hill  L  241  ;  II.  222, 

225,  226,  230,  241,  .533 

Blade  v.  Nolan  II,  290,  293,  303 

Blair  v.  Bank  of  Tennessee      I.  229,  310  ; 

II.  560,  568 

V.  Williams  II.  510 

Blake  v.  Beaumont  I.  309,  425 

V.  Crowningshield  I.  385 

V.  Lawrence  II.  394 

V.  Peck  I.  199 

V.  Sewell  IL  215 

T.  Wheadon  I.  137 

V.  White  I.  241 

Blakely  v.  Grant   I.  493  ;  IL  53,  135,  485 

Blakemore  v.  Wood  II.  513 

Blanchard  v.  Hilliard  L  369,  384 

V.Russell        IL  321,  325,  326, 

327,  346,  359,  360,  361,  382 

V.  Stevens  I.  221,  223 

V.  Wood  I.  579 

Blanckenhagen  v.  Blundell  I.  34 

Blane  v.  Drummond  II.  373 

Blaney  v.  Hendricks  I.  393 

Blankenshlp  v.  Rogers  I.  537,  547  ;  IL  7 1 , 

609 
Blanton  v.  Rice  II.  228 

Blcaden  r.  Charles  II.  265,  293 


XXV  m 


INDEX    TO    CASES    CITED. 


Bleeker  v.  Hyde  II.  134 

Blesard  v.  Hirst  I.  337,  601 

Blinn  v.  Chester  II.  225 

Bliss  V.  Covington  II.  309 

V.  Houghton  II.  333 

V.  Negus  I.  206 

Blocker  v.  Whittenburg  II.  375 

Blodgett  V.  Durgiii  I.  402 

V.  Wadhams  II.  427,  433 

Bloodgood  V.  Bruen  II.  649,  650,  657,  661 

V.  Hawthorn  I.  537,  541 

Blount  V.  Riley  II.  472 

V.  Robeson  II.  629 

Bloxain  r.  Sanders  II.  165 

Bloxsome  v.  Neale  II.  230 

Board,  Ex  parte  II.  1 89 

Board  of  Police,  &c.  v.  Covington     I.  240 

Boardman  v.  Gore  II.  573 

r.  Paige  I.  250  ;  II.  253 

V.  Roger  II.  436,  445,  455 

??.  Smith  11.611 

Bobo  V.  Hansell  I.  74 

Bock  V.  Lauman  II.  427 

Boddington  v.  Schlcncker  II.  65,  69,  72,  85 

Bodenham  v.  Purchas  II.  225   229,  230 

Bodtrer  v.  Arch 


Bodily  V.  Bellamy 
Bodkins  v.  Taylor 
Boehm  v.  Campbell 
V.  Sterling 


Boehmc  v.  Carr 
Boeka  v.  NucUa 
Bogert  V.  Hertcll 

V.  Vemiilya 
Boggs  V.  Lancaster  Bank 
Bogy  V.  Keil 
Bois  V.  Cran field 
Bolan  V.  Williamson 
Boliiiger  v.  Gordon 
Bolitho,  Kx  parte 
Bolland  v.  Bygrave 

V.  Nosh 
Bolics  V.  Rtc^ams 
BoUond's  Case 
Bolton,  Kx  jiarte 

r.  Dugdale 

V.  Ilarrod 


II.  656 

II.  394 

II.  469 

1.58 

262,  272,  531  ;  II. 

57,  58,  59,  79,  84 

I.  470 

II.  49,  449 

I.  156,  159 

II.  657,  658 

11.43 


V.  Puller 


I.  530,  5.56 
II.  223 
11.315 
II.  606 
I.  131 
I.  199 
II.  613 
II.  4,  584 
II.  585 
I.  299 
I.  38 
I.  342,345;  II.  437, 
454 
II.  43 


Bolton  V.  Reichard  (1  Esp.)  II.  155 

r.  Richard  (6  T.  R.)  II.  99, 1 55, 195 
Bomley  v,  Frazier  II.  372 

Bonaffe  r.  Woodberry  II.  222 

Bonar  v.  Macdonald  I.  239 

Bonaud  v.  Sorrel  II.  605 

Bonbonus,  Ex  parte  I.  125 

Bond  V.  Bragg  II.  499 

V.  Central  Bank  I.  221 

V.  Farnham      I.  446,  528,  537,  561, 
563,  565,  566,  568 
V.  Fitzpatrick     I.  275  ;  II.  44,  472, 
604 
V.  Jones  II.  228 

T.  Kent  II.  167 

V.  Morley  II.  503 

V.  Storrs     I.  236,  238,  310  ;  II.  456 
Bondurant  v.  Commercial  Bank      II.  434 
V.  Everett  I.  483,  497 

Bonncy  v.  Seely  I.  243,  244 

Boody  V.  McKenney  II.  512 

V.  United  States  II.  223 

Boon  V.  Murphy  11.  168 

Boone  v.  Poindexter  II.  416 

Boot  V.  Franklin  I.  350,  440 

Booth  V.  Grove  II.  480 

V.  Jacobs  I.  617 

V.  Smith  II.  160,  162 

V.  Wallace  I.  29 

Bordelon  v.  Weymouth  II.  87 

Rorncman  v.  Sidlinger  I.  54,  446 

Borough  V.  Perkins  I.  642  ,  II.  329 

Borradaile  v.  Lowe  I.  596,  599 

Bosanquet  v.  Anderson  II.  479,  483, 

485,  486,  590,  595 
V.  Corser  I.  193 

r.  Dudman       L  199;  IL  230, 
455 
V.  Forster  I.  193 

V.  Wray  II.  224,  225,  228 

Bosler  r>.  Exchange  Bank  11.611 

Bosley  v.  Porter  II.  222 

Bossangc  r.  Ross  II.  427 

Bossard  v.  White  II.  640 

Boston,  The  II.  173 

Boston  Bank  v.  Hodges  I.  369.  370, 

411,  414,  419 
Boston  II.  M.  Co.  r.  Mcssingcr  I.  239 
Bosiwick  r.  Dodge  •  I.  2'?l 

Boswell  V.  Clarksons  II    434 


INDEX   TO   CASES   CITED. 


XXIX 


Bos  well  V.  Smith 
Bottomley  v.  Wilson 
Bouclicll  V.  Clary 
Boucher  v.  Lawson 
Boulagcr  v.  Talleyrand 
Bouldin  v.  Page 


n.  83 

II.  466 
I.  70 

n.  321,330 
I.  .537 
II.  372 


Boukbee  v.  Siuhbs        I.  528  ;  II.  240,  248 

Boulton  V.  Welsh  I.  468,  469 

Boulware  v.  The  Bank  II.  564 

Bourg  V.  Bringier  II.  467 

Boutell  V.  Cowdin  I.  177,  202 

Boutwell  i;.  Mason  II.  223 

Bovill  V.  Wood  I.  247 

Bowditch  V.  Green  I.  246 

Bowdre  v.  Hampton  II.  657 

Bowen  v.  Doggett  I.  217 

».  Hale  11.619 

V.  Mead  I.  128 

V.  Newell    I.  399,  400  ;  II.  67,  68, 

69,  70,  336.  344 

V.  Stoddard  I.  116,  650 

Bower  v.  Tiermann  I.  239 

Bowerbank  v.  Monteiro     I.  301,  302  ;  II. 

145,  503,  536,  539 

Bowers  v.  Hurd  I.  177,  179  ;  II.  55 

V.  Jewell  n.  565,  570,  577 

Bowes  V.  Howe  I.  307,  446,  528  ;  II. 

98,  192 

Bowie  V.  Duvall    1. 310, 358  ;  II.  442,  455 

Bowker  v.  Harris  II.  651 

Bowles  V.  Elmore  II.  643 

V.  Newby  I.  206 

Bowling  V.  Harrison  I.  483 

Bowman  v.  Downer  II.  654 

V.  Nichol  II.  568 

V.  Smith  II.  286,  298 

V.  Wood  n.  437,  444,  445 

Bowne  v.  Hyde  II.  466 

V.  Joy  n.  390 

Bowness,  Ex  parte  11.  82 

Bowser  v.  Bliss  II.  535 

Box's  Case  I  35 

Boxley  v.  Gayle  11.  652 

Boyce  v.  Edwards       I.  294,  298  ;  II.  325, 

341,  372,376 

■-  Warburton  11.399 

Boyd  V.  Brotherson  II  569 

V.  Cleveland        I.  585,  593  ;  II.  516 

V.  Cummings  I.  226 

r  Emmerson  II.  69,  77 

C* 


Boyd  V.  Hitchcock 
V.  McCann 
V.  McConnell 
r.  Mclvor 
V.  Plumb 
Boydell  v.  Ilarkness 
Boyle  V.  Arledge 
V.  Skinner 
V.  Zacharie 
Boylston  v.  Greene 
Boynton  v.  Dyer 
Bo/.eman  v.  State  Bank 
Brabston  v.  Gibson 
Braekenridge  v.  Baltzell 
T.  Baxton 
Brackett  v.  Mountfort 

V.  Norton 
Bradford  v.  Bucknam 
V.  Cooper 
V.  Corey 
V.  Farrand 
T.  Hubbard 
V.  Spyker 
Bradlee  v.  Boston  Glass  Co. 
Bradley  v.  Anderson 
V.  Bardsley 
V.  Bentley  I 

V.  Cary 
V.  Davis 


IT.  158,  15P 

I.  261 

II.  574 

I.  188;  II.  493 

I.  140,  233 

I.  426 

II.  305,  634 

I.  132 

II.  326,  363 

II.  215 

II.  426 

I.  247 

I.  309,  325,  356 

II.  647 


V.  Delaplaine 

V.  Field 

V.  Hunt 

V.  Long 

V.  Pratt 

V.  Root 

V.  Trammel 

V.  Phelps 
Bradshaw  v.  Davis 
Brady  v.  Hill 
Bragg  V.  Greenleaf 
Braham  v.  Bubb 

V.  Ragland 
Brailsford  v.  James 

V.  Williams 
Brainard  v.  Buck 
Braithwaite  v.  Gardiner 
Brake  v.  Corning 
Bramah  v.  Roberts 
Braman  v.  Hess 


11.373 

II.  554 

11.  318 

II.  443 

II.  396 

I.  579 

II.  360 

I.  241  ;  11.239,251 

II.  647,  660 

I.  98,100 
II.  507 
II.  580 

51  ;  II.  522 
II.  140 
I.  473,  484,  494,  496, 
635  ;  n.  495 
I.  273  ;  II.  68 
n.  649 

II.  89,  92 
II.  294,  301,306 

1.70 

I.  335 

II.  48,  449 

II.  520 

II.  622 

n.  224,  225 

n.  444 


1.43 

I.  507 

II.  651 

I.  482,  504 

II.  649 

I.  321 

11.  605 

I.  140 

II.  414,  428 


JLXK 


INDEX  TO  CASES   CITED. 


Branch  Bank  of  Montgomery  v.  Gaffney 

I.  268,  359,  372,  378,  382 
V.  Hodges  I.  366 

T.  James  I.  235 

V.  Peirce  I.  493 

of  Alabama  v.  Windham 

n.  644  ' 

at  Mobile  v.  Tillman       II. 

291,  294,  297,  301 

Brandao  r.  Barnctt  11.114 

Brander  v.  Phillipp  II.  232 

Brandon  v.  Nesbitt  11.  8 

Brandram  v.  Wharton  II.  656,  661 

Brandt  v.  Foster  II.  286 

Brannin  v.  Henderson  I.  283 

Brannock  v.  Bushinell  II.  654 

Brard  v.  Ackerman  II.  469 

Bray  v.  Bates  II.  173,  174 

V.  Hadwen  I.-  504,  5 1 4,  5 1 5 

Braynard  v.  Fishei  II.  604 

V.  Marshall        11.  325,  342,  376 

Brazier  v.  Bryant  II.  225 

Breed  v.  Cook  11.  152,  156,  183 

r.  Hillhouse  1.596,621,623; 

n.  127 

V.  Judd  I.  67 

Brembridge  v.  Osborne  II.  220 

Brent  r.  Cook  11.  641 

V.  Ervin  II.  298,  S04 

Brenzer  v.  Wightman  I.  268,  377,  519 

Brett  V.  Levett  I.  596,  618 

V.  Marsh  II.  222 

V.  Marston  II.  118 

Brewer  v.  Branch  Bank  II.  177 

V.  Brewer  I.  25;  II.  651 

V.  Knapp  II.  225 

Brewster  v.  Arnold  I.  466,  471,  477 

r.  Bours  II.  1.53,  161 

v.  Dana  II.  519 

r.  Hardeman  II.  658 

V.  Hobart  I.  105 

V.  McCardel  I.  387  ;  II.  27 

r.  Silence  1.44;  II.  119,129,  130 

T.  Wakefield  II.  396 

Brcyfoglc  v.  Bccklcy  II.  393 

Brian  v.  Tims  II.  635 

Bridge  r.  Gray  II.  481 

r.  Ilal.bard  11.418,420 

V.  Johnson  II.  604 

Bridgcr  v.  Heath  II.  257,  272 


Bridges  V.  Beny 

I. 

329 

n.  181 

Bridgman  v.  Dean 

I.  196 

Briggs  V.  Briggs 

II.  609 

V.  Lapham 

II.  542 

V.  Moore 

II.  606 

v.  Williams 

II. 

227,  228 

T.  Wilson 

n. 

645, 

656,  660 

Brigham  v.  Bigelow 

II. 

381,  384 

V.  Giirney 

n. 

437, 443 

V.  Hutchins 

II.  660 

V.  Peters         I 

92 

;  U. 

476,  490 

V.  Wentworth 

I.  239 

Bright  v.  Hand 

I.  247 

V.  Furrier        I. 

350 

351 

;  II.  463 

Brighton  Market  Bank  v 

Philbric 

k    L492 

Brigstocke  v.  Smith 

II.  651 

Brill  V.  Crick 

II. 

.542,  578 

Brinagar  v.  Phillips 

L  240 

Brind  v.  Bacon 

II.  467 

V.  Hampshire 

L  49 

Brindlcy  v.  Barr 

I. 

482,  487 

Brinkloy  v.  Going        I.  358 

;  II. 

220,  442 

Briscoe  V.  Anketell 

II.  631 

Bristol  V.  Sprague 

L  148 

V.  Warner 

L  228 

Bristow  V.  Sequeville 

n.  330 

British  Linen  Co.  v.  Drnmmond 

II.  326, 

383,  384 

Brittain  r.  Johnson 

I.  507 

Britten  v.  Webb 

II 

457,  459 

Broadiicad  v.  Noyes 

U. 

320,  327 

Brock  V.  Jones 

II.  623 

V.  Thompson 

I. 

378, 

379,  383, 

519 

;  II.  428 

Brockway  r.  Allen 

I. 

94,  96,  97,  169 

Broddie  v.  Johnson 

II.  650 

V.  Searcy 

1.396 

Brodie  v.  Howard 

IL  180 

Brody  v.  Doherty 

II 

652,  655 

Bromage  v.  Lloyd 

I.  48,  1 

59  ;  II.  5 

V.  Vaughan 

I 

474,  476 

Bromwich  v.  Loyd 

L  11 

Bronangh  v.  Scott 

IL  244 

Brook  V.  Smith 

II 

388,  390 

r.  Wentworth 

IL  165 

Brookes  v.  Chcsley 

n.  661 

Brookliard  v.  Woodlcy 

11.477 

Brooklyn  Bank  v.  Waring 

I.  596 

Brooks  V.  Elkins 

I.  21 ,  2.1 

V.  Floyd 

n.  410 

INDEX   TO   CASES   CITED. 


XXXi 


Brooks  V.  Mitchell    I.  265,  271,  376,  379 ; 
II.  79,  643 
V.  Stuart  I.  247  ;  II.  237,  508 

V.  White  I.  245 

Broom  v.  Batchelor  II.  131 

Broomhead,  In  re  II.  632 

Brougiiton  v.  Fuller  II.  560,  565 

V.  Manchester  &  S.  Water- 
Works  Co.         I.  164,  166 
V.  West  II.  559 

Brower  v.  Peabody  II.  116 

Brown,  Ex  parte  I.  252 ;  II.  5 

In  re      1.271,273,547,552,553; 
II.  56,  57,  59,  67,  68,  69,  71, 
72,  74,  75,  78,  84,  250 
V.  Bebee  II.  515 

V.  Brown  II.  54,  446 

V.  Butchers',  &c.  Bank     I.  22,  23, 
11.16 
r.  Byers  II.  478 

V.  Clark  I.  145  ;  II.  437 

V.  Collins  II.  364 

r.  Curtiss  I.  44  ;  II.  132,  138 

V.  Davies  I.  261,  275,  376 ;  II.  59, 
604 
».  DeWinton  1.18,20 

V.  Durbin  II.  96 

V.  Edes  II.  639 

r.  Ferguson      I.  57,  510,  514,  642 
V.  Gilman  1.33;  II.  168 

V.  Gracey  II.  334 

r.  Harraden  I.  373,  391,  392 

r.  Harrison  11.407,410 

V.  Hill  II.  645 

V.  Hull  II.  508 

V.  Hutchins  II.  663 

V.  Jodrell  (3  C.  &P.)     I.  149,  150 
V.  Jones  n.  549,  580 

V.  Keach  II.  651 

V.  Kewley  II.  41,  85,  105, 

155,  159 
V.  Langley  II.  508,  536 

V.  Leavitt  II.  645 

».  Lull  11.172 

V.  Lusk     I.  552,  555,  601  ;  II.  59, 
67,  68,  69,  70,  71 
V.  Maffey  I.  538,  539,  556  ;  11.498 
r.  Maine  Bank  II.  51 

V.  Marsh  I.  248 

V.  Merrick  II.  646 


Brown  v.  Messiter 

IL  296,  309 

V.  Mott      I.  184, 

191  ;  n.  27,  250 

V.  Nevitt 

n.  406 

V.  Newell 

L  400 

v.  Noyes 

L  309 

V.  Philpot 

L  188;  IL493 

V.  Pinkham 

IL  544,  582 

V.  Richardson 

n.  320 

V.  Rivers 

IL  218 

V.  Saul 

IL  91,  189,  6^:0 

V.  State  Bank 

IL  64  9 

V.  Stewart 

IL  630 

V.  Taber 

IL  28,  29,  275 

V.  Turner 

L  362,  510 

V.  Van  Braum 

L  654 

V.  Wakefield 

IL  655 

V.  Waters 

n.  406,  419,  420 

Browne  v.  Carr 

IL  240,  247 

V.  Coit 

L  302,  305 

V.  Joddrell  (Moody  &  M.)      II.  6 

V.  Lee 

IL  254 

V.  Murray 

L186 

v.  Robinson 

IL  608 

Brownell  v.  Bonney 

L  614,  618 

Browning  v.  Kinnear 

L  527 

Bruce  v.  Bruce      II.  37,  38,  589,  600,  601 

V.  Flagg  n.  634 

».  Lytle    1.446,450,529,563,571, 

574,  57.5,  582,  586,  596,  621,  626 

V.  Westcott      I.  276  ;  II.  562,  563, 

565 

Brunson  v.  Napier  I.  570 

Brush  V.  Scribner  I.  221  ;  IL  43,  278 

Brutt  V.  Picard  11.  570 

Bryan  v.  Berry  I.  233,  238 

V.  Ware  IL  640 

V.  Weems  II.  645 

Biyant  v.  Christie  I.  216 

V.  Clifford  IL  605,  607 

v.  Damariscotta  Bank  II.  88 

V.  Eastman  I.  172;  IL  17 

V.  Edson     L  399 ;  IL  333,  336,  351 


V.  Ritterbush 
V.  Smith 
Bryden  v.  Brydcn 
V.  Taylor 
Bubier  v.  Pulsifer 
Buchanan  v.  Bordley 
V.  Findlay 
V.  Marshall 


II.  95,  467,  470 

IL  237 

L  508 

I.  634,  635 

n.  420,  469,  470 

L  237 

11.27 

L  580 ;  II.  343 


XXXll 


INDEX  TO   CASES   CITED. 


Bucher  v.  Jarratt  11.  292 

Buck  V.  Appleton       I.  393  ;  II.  470,  521, 

556,  565 

V.  Cotton  I.  529,  533,  556 

V.  Kent  II.  293 

Buckingham  v.  McLean  II.  433 

r.  Smith  11.651 

Buckland  c  Tankard  II.  467,471 

Buckler  v.  Buttivant  I.  199 

r.  Moor  II.  155 

Buckley,  Ex  parte.  In  re  Clarke  1. 130,  247 

V.  Barber  I.  144 

V.  Beardslee  II.  1 28 

r.  Guildbank  11.412 

Bucklin  v.  Ford  II.  636,  642,  645 

Buckmaster  v.  Meiklejohn  II.  619 

Bucknam  r.  Thompson  II.  634 

Buckner  v.  Calcote  II.  640 

V.  Finley  I.  57,  642 ;  11.  322,  323, 

324 

V.  Greenwood  II.  35 

V.  Lee  L  132,  133 

V.  Real  Estate  Bank  II.  448 

V.  Tljompson  II.  616 

Buddington  v.  Stewart  II.  170 

Bueli  ».  Shethar  IL  361 

Buffington  v.  Gerrish  II.  207 

Buffum  V.  Chadwick  II.  449 

V.  Deane  II.  618 

Bulger  V.  Roche  II.  318,  321 ,  383 

Bulkelcy  r.  Butler  II.  480,  481 

Bull  V.  Allen  I.  235,  237 

r.  Bliss  11.119 

BullardT).  Bell  IL  189 

V.  Dorsey  II.  609 

V.  Randall  II.  59,  61 

V.  Wilson  II.  453,  496 

BuUen  v.  McGillicuddy  IL  160,  218 

Bailer  r.  Crips  L  10,  11,  12  ;  II.  328 

Bullet  V.  Bank  of  Pa.  L  231  ;  IL  100,298, 

312 

Bulloch  V.  Smith  11.  651,  652 

Bullock  V.  Campbell  II.  638 

V.  Dunbar  II.  609 

V.  Lloyd  II.  487 

r.  Ogbum  I.  202 

Bullpin  V.  Clarke  L  79 

Bull  V.  Morrcll  I.  140 

Buingardner  v.  Taylor  II.  662 

BuMipnss  V.  Timms  I.  49,  276,  337 


Bunker  v.  Alheam 
Buimell  V.  Butler 
Bunney  v.  Poyntz 
Burliank  v.  Beach 


n.  659 

IL  617 
IL  166 
I.  646 


Burbridge  v.  Manners  I.  417,  516  ;  II.  215 

Burchell  v.  Slocock  I.  227 

Burchtield  v.  Moore  II.  548 

Burckmycr  v.  VVhitcford  I.  515 

Burden  v.  Halton       IL  151,  308,  436,  443 

Burdick  v.  Green  IL  160,  365,  439 

Burdon  v.  Benton  I.  199 

Burge  «.  Dishman  11.510,530 

Burgess  v.  Chapin  II.  41,  157,  163 

V.  Cuttill  IL  466 

V.  Merrill  I.  77  ;  II.  458 

V.  Vreeland  L  471,  472,  511,  512, 

518 

Burgh  V.  Legge  I.  587,  592,  614,  629 

Burgwin  v.  Bal)cock  II.  609 

Burk  V.  Howard  II.  661 

Burke's  Case  (6  Ves.)  II.  248 

Burke's  Case  (Russ.  &  R.)  II.  584 

Burke  ».  Allen  L  71,  151  ;  IL  6 

V.  Clarke  II.  179 

V.  Cruger  I.  235,  245 

V.  Jones  II.  629 

V.  McKay        L  506,  633,  642,  643, 

645 

Burkett  v.  Moses  II.  603 

Burkitt  V.  Ransom  I.  195 

Burleigh  v.  Stott  IL  658,  659,  660 

Burlington  County  Bank  v.  Miller    II.  80 

Burmester  v.  Barron  I.  486,  490 

Burn  V.  Boulton  II.  653,  654 

V.  Burn  I.  251 

V.  Carvalho  I.  336 

V.  Morris  II.  264,  266,  267 

V.  Poaug  L  237  ;  II.  246 

Burnell  v.  Minot  I.  250 

Burnet  v.  Bryan  II.  644,  645 

Burnham  v.  Allen  I.  28,  375  ;  IL  493,  494 

V.  Ay  re  II.  568,  577 

V.  Gallentino  II.  118 

V.  Webster        I.  255,  579.  580  ; 

IL  9 

V.  Wood  L  255;  II.  910 

Burnley  v.  Sharp  II.  641 

Burns  v.  Hill  IL  606 

v.  Tallon  IT.  286 

i;.  Tavlor  II.  167 


INDEX   TO   CASES   CITED. 


XXXlll 


Burr  V.  Burr  II.  649,  651 

V.  Smith  II.  216 

Bunall  V.  Rice  II.  364 

Burridge  v.  Geauga  Bank  II.  93,  286,  305, 

306 

V  Manners  I.  230;  II.  213 

Burrill  v.  Smith  I.  366,  444  ;  II.  239,  589 

Burrough  v.  Moss  I.  88  ;  II  446,  447, 

604,  615 

Burroughs  v.  Bloomer  II.  636 

Burrows  v.  Hanneganl.  442,  455,  571,595 

V.  Jemino     I.  328  ;  II.  319,  342, 

376 

II.  565 

11.141 

II.  661 

11.413,  414 

II.  359,  360,  363 

II.  306,  453 

I.  147 

II.  84,  292 

II.  577 

1.12 

II.  648 

II.  648,  649 

11.36 

11.412 

II.  649 

1.427 

II.  415,  431 

I.  221 ;  II.  45,  493 

II.  372 

1.401,  478,  515; 

II.  492 

II.  246 

1.413  ;  11.462 

II.  443 


V.  Stoddard 
Burt  V.  Horner 
V.  Palmer 
Burton's  Case 
Burton,  Ex  parte 
v.  Dees 
r.  Issitt 
r.  Payne 
V.  Pressly 
V.  Souter 
V.  Stevens 
V.  Wharton 
Bury  V.  Hartrnan 
Busby  V.  Finn 
Bush  V.  Barnard 
V.  Kinnear 
V.  Livingston 
V.  Peckard 
Bushby  v.  Camac 
Bussard  v.  Levering 


Bynncr  v.  Russell 

1410 

Bynum  v.  Rogers 

II.  428 

By  ram  v.  Hunter 

I.  595,  .^97 

Byrd  v.  Bertrand 

II   48; 

V.  Byrd 

II.  646 

Byrom  v.  Thompson 

II.  577 

Butler  V.  Hamilton 
V.  Kimball 
v.  Robertson 
v.  State 
V.  Stocking 
V.  Winters 
V.  Wright 
Butterfield  v.  Jacobs 
V.  Kidder 
V.  Kinzie 
Butterworth  v.  Despencer 

V.  Peck 
Button  V.  Downham 
Butts  V.  Dean 
Buxton  V.  Jones 
Buzzell  V.  Snell 
Vol.  I.— a 


I.  588 

L  140, 142 

II.  638,  649 

IL  495 

IL  649,  652 

IL  417,525 

L310 

I.  427,  428 

IL  60 

IL  413 

IL  151,  152,  163 

L  366,  457 

II.  376 


Cabot  V.  Given  II.  478,  485 

Bank  v.  Morton  IL  37,  186,  187 

•  485,  486,  590,  60(! 

V.  Russell  I.  49  7 

Cady  V.  Commonwealth  II.  588 

Cain  V.  Spann  I.  255 

Calder  v.  Billington  II.  53 

Caldwell  v.  Cassidy  L  309,  310,  430  ; 

II.  88,  98 

V.  Ferrill  II.  648 

V.  May  II.  524 

V.  Rodman  II.  643 

V.  Sigourney  II.  658 

V.  Stileman  I.  144 

V.  Wcntworth  II.  226,  228 

Calhoun  v.  Davis  II.  509 

Calisto,  The  IL  170 

Call  V.  Lothrop  II.  621 

V.  Scott  II.  414 

Callaghan  v.  Aylett  I.  307 

Callow  V.  Lawrence  II.  219,  233.  568 

Calton  V.  Bragg  II.  395 

Calvert  v.  Baker  II  580 

Camden  v.  Doremus  II.  141,  142 

V.  McKoy  IL  120,  125,  519 

Came  v.  Brigham  I.  164 

Cameron  v.  Smith     II.  394,  395,  396,  397 

Cauiidge  ».  AUenby  II.  41,  71,  94,  97,  103, 

:05,  156,  158,  181,  182,  183,  184,  191 

Cammack  v.  Griffin  II.  162 

Cammer  v.  Harrison  I.  375,  407 

Camp  V.  Bates  II.  424 

V.  Lock  wood  II.  318 

V.  Scott  I.  264 

V.  Tompkins  I.  50 

V.  Walker  II.  472 

Catnparree  v.  Brockway  II.  121 

Campbell  v.  Brown  I.  248 

r.  Butler  IL  120 


kXXlV 


INDEX   TO    CASES    CITED. 


Campbell  v.  Carman  I.  268 

V.  Hays  II.  616 

T.  Hodgson  II.  225,  506 

V.  Humphries  II.  220,  455 

T.  Knapp  II.  125 

V.  Mississippi  Union  Bank 

II.  107 

V.  Pettengill       I.  303,  543,  545 

r.  Bead  11.431 

V.  Tousey  II.  374 

V.  Upshaw  II.  513 

7).  Webster  1.614,616 

Can  V.  Read  11.  82,  83 

Canal  Bank  v.  Bank  of  Albany  I.  275,  320, 

321,  322;  II.  38,  284,  483,  485,  590, 

596, 599 

Canfield  v.  Gibson  II.  9 

r.  Ives  I.  246 

V.  Vaughan  II,  136 

Cannam  v.  Farmer  I.  78 

Cannan  v.  Bryce  ^  I.  214 

Cannon  v.  Beggs  II.  393 

Cape  Fear  Bank  v.  Stinemetz  I.  57 

Capen  v.  Alden  II.  228,  230 

Capp  V.  Lancaster  II.  643 

Capper  ?7.  Spottiswoode  11.167 

Capron  v.  Johnson  II.  364 

Carey  v.  Greene  II.  107 

V.  McDougald  I.  26 

V.  Pitt  II.  476 

Cargo  of  the  Ship  Anna  Kimball    II.  169 

Cariss  v.  Tattersall  II.  563,  577 

Carlan  v.  Ireland  II.  65 

Carlcy  v.  Vance  I.  309,  432 

Carlisle  v.  Davis  II.  301 

V.  Hill  II.  427 

V.  Morris  II.  655 

V.  Rich  I.  244 

V.  Wishart  I.  221 

Carll  ().  Brown  I.  264 

r.  ILirt  II.6J58 

Carlon  v.  Ireland  II.  586 

v.  Kenealy  I.  374,  407 

Carlos  V.  Fancourt  I.  45 

Carlton  v.  Bailey  I.  264,  377 

Carlton  v.  Ludlow  Woollen  Mill     II.  657, 

658,  660 
Carman  v.  Garrison  IF.  608 

Carmi(  Iiael  r.  Bank  of  Pa.        I.  337,  348, 

591,  641 


Carne  v.  Legh  I.  252 

Carneal  v.  Thompson  H.  635 

Carnegie  v.  Morrison  1.  249,  291.  294,  296  ; 

IL  62,  109,  134,  318,  321,  338 

Carpenter  v.  King  I.  235,  246 

V.  Oaks  IL  121 

v.  Wells  II.  635 

Can-  V.  Carr  II.  61 

V.  Eastabrooke  II.  236 

V.  Howard  I.  237 

V.  LcFevre  II.  33,  115,  116 

V.  Rowland  IL  120,  125 

V.  Shaw  II.  353,  355 

V.  Stephens  II.  536 

Carriere  r.  Ticknor  11.617 

Carroll  v.  Upton  I.  490,  492 

V.  Van  Rensselaer  II.  167 

V.  Waters  II.  179 

V.  Weld  IL  120,  121,  519 

Carroll  ton  Bank  v.  Tayleur      I.  294,  298 

Carroway  v.  Cox  II.  461 

Carruth  v.  Paige  II.  650 

Carruthers  v.  West  II.  29 

Carshore  v.  Huyck  '         II.  6C1 

Carson  v.  Bank  of  Alabama  I.  483 

V.  State  Bank  I.  490  ;  II.  490 

Carstairs,  Ex  parte  I.  241  ;  II.  248 

V.  Rolleston         I.  326  ;  IL  249 

V.  Stein  IL  407,  410 

Carter  v.  Bennett  II.  629 

V.  Bradley  I.  475,  476,  499 

V.  Burley  L  57,  511,  513.  514,  517, 

595,   601,   620,   621,   622,   634, 

635,   640,   642,   643,  ;  IL   325, 

329,  497,  499 

T.  Carter  I.  251 

V.  Cross  II.  649 

V.  Flower        I.  266,  344,  534,  550, 

554,  557,  560,  575  ;  II.  72 

V.  Hamilton  II.  506 

V.  James  II.  487 

V.  Smith  I.  309 

V.  Union  Bank  I.  495,  640,  04 1 ,  642 

r.  Vaulx  II.  301 

Carteret  v.  Paschal  II.  45 

Carticr  v.  Page  II.  381 

Cartwright  r.  Cooko  II.  217 

V.  Gardner  II.  448 

V.  Williams  il.  28,  32 

Caruth  r.  Thompson  I.  279 


INDEX   TO   CASES   CITED. 


XXX'' 


Can'er  v.  "Warren 
Carvick  v.  Vickery 
Gary  v.  Campbell 

V.  Gerrish 
Casborne  v.  Dutton 
Casco,  The  Brig 
Case  V.  Heffner 


1.37;  n.  118 

I.  321  ;  II.  4,  477 

II.  305 

II.  84 

I.  24,  25 

II.  170 

I.  660 


V.  Morris       I.  534,  537,  552  ;  II.  71 
V.  Spalding  II.  519 

Cash  V.  Kennion  I.  664  ;  II.  370,  376 

V.  Taylor  I.  92,  101 

Cassel  V.  Dows  II.  564 

Castle  V.  Candee    I.  377  ;  II.  122,  139,  519 
Castrique  v.  Bernabo  I.  412,  417  ; 

II.  462 

Cathell  V.  Goodwin      I.  89,  443,  537,  538, 

549;  II.  71 

Catherwood  v.  Chabaud        I.  156,  157  ; 

II.  446 

Catlin  V.  Gunter  II.  414,  427 

T.  Hansen  I.  189 

V.  Lyman  II.  424 

V.  Marsh  II.  424 

Caton  V.  Shaw  II.  409,  434 

Cator's  Case  II.  477 

Catskill  Bank  v.  Messenger  I.  248 

V.  Stall  L  125,  497 

Catton  V.  Simpson  II.  557 

Caunt  V.  Thompson        I.  364,  471,  477, 

526,  629 

Cave  V.  Hall  II.  154 

V.  Webb  II.  607 

Cawley  v.  Furnell  II.  650,  651 

Cayuga  Co.  Bank  v.  Bennett  I.  482, 

501,  502 

V.  Dill  I.  593 

V.  Hunt        I.  362,  418, 

420,  421,  636,  644  ;  II.  433 

V.  Warden  I.  471, 

473,  475,  476,  477 ;  II.  348 

Cecil  V.  Mix  II.  120 

Central  Bank  v.  Allen       I.  393,  404,  438, 

451  ;  II.  491 

V.  Curtis  II.  454 

o.  Davis  I.  369,  610 

V.  Willard        n.  242,  531, 

538,  539,  540,  541 

of  Brooklyn  v.  Lang  II.  449 

Certain  Logs  of  Mahogany  U.  169 

Chadbourn  v.  Watts  11.  418,  420 


Chadwick  v.  Allen  I.  24,  31 

V.  Jeffers      L  378,  382,  383,  520 

Chalmers  v.  Harris  II.  38 

V.  Lanion  XI.  604 

Chamberlain  v.  Gorham     II.  290,  298,  305 

V.  Hopps  I.  48 

V.  Townsend  II.  427 

Cliamberlyn  v.  Dclarive      I.  337  ;  H.  154 

Chambers  v.  Games  II.  619 

V.  Garland         II.  628,  649,  650 

V.  Hunt  II.  287 

V.  McDowell  II.  160 

V.  Marks  II.  647 

V.  Walker  II.  663 

Champant  v.  Ranelagh  II.  324 

Champion  v.  Griffith  II.  121 

V.  Terry        IL  151,  154,  294, 

295,  296,  307 

Champlin  v.  Butler  II.  235 

Chancy  v.  Baldwin  IL  302 

Chander  v.  Sterling  I.  508 

Chandler  v.  Herrick  II.  532 

V.  Lawrence  II.  478,  662 

V.  Marsh  I.  210 

V.  Mason      I.  444,  559  ;  II.  469 

V.  Morton  II.  469 

V.  Parkes  I.  77 

Chaney  v.  Baldwin  IL  298,  299 

Channell  ».  Ditchburn  II.  659 

Chanoine  v.  Fowler  I.  504,  634 

Chapcott  I'.  Curlewis  I.  490 

Chaplin  v.  Levy  IL  286 

Chapman  v.  Annett  I.  615 

».  Black  L  217;  IL  418, 

420,  431 

V.  Durant  IL  151 

V.  Eddy  I.  204 

V.  Hiden  II.  466 

V.  Keane  L  503,  504 

V.  Lipscombe  I.  478,  491  ; 

IL  492 

V.  Robertson  II.  319,  337, 

338,  376,  380 

V.  Schroeder  IL  629 

V.  Steinmetz  II.  171 

V.  Tanner  II.  166 

r.  White     L  290;  IL  59,60,  61 

Chappel,  Ex  parte  I.  500 

Chappell  V.  Spencer  II.  556,  558 

Chappie  V.  Durston  II.  631 


XXXV] 


INDEX  TO   CASES   CITED. 


Charles  v.  Marsden  I.  326;  II.  29 

Charlotte,  Steamboat,  v.  Hammond 

II.  154,  160,  162,  176,  218 

Charlotte,  Steamboat,  v.  Lumm    II.  151 

Chard  v.  Fox  I.  471 

Chamley  v  Dulles  I.  26 

W.Grundy   11.288,289,310,311 

Charrington  v.  Miiner  II.  467 

Chartres  v.  Cairnes        II.  318,  338,  375 

Chaser.  Kendall  I.  148 

V.  Redding  II.  54 

V.  Strain  II.  615 

V.  Taylor  I.  634 ;  II.  497 

V.  Westmore  II.  165 

V.  Weston  I.  210 

Chastain  ».  Johnson    II.  154,  161,  205,  218 

Chat  V.  Edgar  I.  11 

Chaters  v.  Bell  I.  643,  644  ;.  II.  485 

Chatfield  v.  Paxton  I.  607,  608 

Chaudron  v.  Hunt         II.  290,  291,  293, 

295,  297,  298,  309 

Chautauque  Bank  v.  Davis   I.  358 ;  II.  442 

Chazournes  v.  Edwards       I.  126,  128,  132 

Cheap  V.  Harley  II.  212 

Cheek  v.  Roper  I.  349 

Cheetham  v.  "Ward         I.  162,  247,  248; 

II.  237 
Cheever  v.  Smith  II.  179 

Chenot  r.  Lefevre  II.  381,  592 

Chenowith  v.  Chamberlin         I.  57,  140, 

641,  642 

Cheshire  v.  Barrett  I.  67,  73,  75 

Ciiesley  v.  Frost  II.  576 

Chesraer  v.  Noyes  I.  635  ;  II.  497 

Chesterfield  v.  Janssen  II.  406,  413 

Chcttle  j;.  Pound  II.  577 

Chevalier  v.  Lynch  II.  387,  390 

Chcvaliier  v.  Buford  I.  47 

V.  Durst  II.  646 

V.  State  II.  619 

Chew  V.  Bank  of  Baltimore  I.  89 

Chewning  v.  Gatcwood  I.  470 

V.  Singleton  II.  297,  305 

Chick  r.  Pillsbury  I.  510,  511,  512 

V.  Trevctt  I.  98 

Chicopec  Bank  r.  Eager  I.  483 

V.  Chapin       I.  191,  221, 

223;  II.  44 

Childers  v.  Boulnois  I.  25 

V.  Deane  II.  412,  423 


Childreis  r.  Stuart  I.  46 

Child  V.  McKean  II.  493 

Childs  V.  Barnum  II.  126 

V.  Monins     I.  161,  195,  198;  II.  6 
V.  Wyman  II.  121,  122,  125 

Chiilingworth  v.  Chillingworth       II.  413 


I.  241 

II.  214,  487 

394,  395,  396 

II.  410 

II.  586 

II.  541 

II.  222,  225 

II.  .539 

II.  632 

I.  244 
I.  85 

I.  489,  495,  498 

I.  130 

II.  643 

I.  289 

II.  169 
I.  501 

II.  634 


Chilton  V.  Bobbins 
V.  Whiffin 
Chinn  v.  Hamilton         II. 
Chippindale  v.  Thurston 
Chisholm's  Case 
Chittenden  v.  Ensign 
Chitty  V.  Naish 
Cholmeley  v.  Darley 
Chouteau  v.  Burlando 
V.  Jones 
V.  Merry 
V.  Webster 
Christie,  Ex  parte 

V.  Fonsick* 
V.  Pearl 
77.  Lewis 
Christmas  v.  Fluker 
Christophers  v.  Garr 
Church  V.  Barlow   I.  229, 326, 515  ;  II.  250 
r.  Clark     L  411,  414,  419  ;  IL  461 
V.  Flowers  II.  298,  309 

t'.  Imperial  Gas  Light  &  Coke 

Co.  I.  163 

V.  Tomlinson  H.  420 

Churchill  v.  Sutcr  IL  418,  426,  468 

Chusan,  Bark  IL  171,  175,  180,  365 

Chute  V.  I'attce  I.  239,  241  ;  II.  135 

Citliens'  Bank  v.  Walker  I.  498 

City  Bank  v.  Cutter     I.  369,  370,  399, 402, 

40.3,  411,  643;  IL  213,462 

of  New  Orleans  v.  Girard 

Bank  I.  651 

Clampitt  V.  Newport  I.  156 

Clap  V.  Day  II.  449 

Clapp  V.  County  of  Cedar  IL  33,  35 

r.  Hanson  11.415,469 

V.  Ingcrsol  II.  662 

r.  Rice  IL  123 

Ciarcmont  Bank  v.  Wood    I.  235  ;  II.  2.50 

Claridgc  v.  Dalton     I.  534,  535,  538,  540  ; 

IL  241,  242,  250,  498 

».  Klctt  II.  620 

Clark,  Ex  parte  IL  233 

V.  Alexander    II.  397,  653,  657,  058 


INDEX   TO   CASES   CITED. 


XXXVII 


Clark  V.  Atkinson 
V.  Badgley 
V.  Baker 
V.  Boyd 


n.  654,  662 

II.  417 

II.  489 

I.  48,  160 


V.  Coinmonwciilth  II.  588 

V.  Devlin  II.  239,  240,  242, 

243,  249 

V.  Draper  II.  165 

V.  Eckstein  II.  577 

V.  Eldridge  I.  471 

V.  Ely  I.  222,  224 

V.  Farmers'  Manuf.  Co.  I.  26  ; 

11.35 

V.  Hill  I.  238,  242 

V.  Hooper  II.  656,  662 

».  Jones  II.  637 

V.  Loomis  I.  276  ;  II.  427 

17.  Merriam  II.  120,  121,  124, 

137,  139 

V.  Minton  I.  447,  530 

r.  MuUenix  II.  623 

V.  Miindal  II.  154 

V.  Reed  II.  301 

r.  Ricker  1.196,215,279 

V.  Rogers  II  577 

V.  Russel  I.  198 

V.  Sigourney        I.  48,  50,  159  ;  II. 

656,  657 

V.  Sisson  II.  427 

V.  Stackhouse  II.  73 

W.Young  II.  153,  155,348 

Clarke,  In  the  Matter  of  I.  247 

V.  Adair  I.  333,  335 

V.  Clement  II.  234 

r.  Cock  1.281,285,287,293 

V.  Cross  II.  637 

V.  Cuckfield  Union  I.  163 

V.  Dutcher  II.  651 

r.  Gordon  1.310,312 

V.  Hawkins  11.  614 

V.  Jenkins  II.  659 

V.  Johnson  II.  266 

V.  Marriott  II.  642 

V.  Percival  I.  38,  43 

V.  Quince  11.  293,  309 

».  Sharpe  I.  486 

v.Shee        11.110,266,267,280 

V.  State  II.  586 

V.  Wilson  II.  247 

Clarkson  v.  Garland  11.  406,  416 


Clason  I'.  Bailej  I.  22,  37 

Clavey  v.  Dolbin  I.  284 

Clawson  v.  Gustin  II.  567 

Claxton  V.  Swift  II.  25,  232,  247,  457 

Clay  r.  Cottrell  I.  124,  126,275 

r.  Crowe  11.289,291,292,295, 

296 

V.  Hopkins  I.  660 

V.  Oakley  I.  482,    500 

V.  Smith  II.  363 

Clayton's  Case  II.  225,  230,  413 

Clayton  v.  Gosling         I.  39,  194  ;  II.  644 

V.  Piiipps  I.  622 

Clcavcland  ».  Stewart        I.  169;  II.  518 

Clegg,  Ex  parte  II.  613 

V.  Cotton  I.  528,  533,  534 

V.Levy  II.  318,  .330 

Clement  v.  Leverett  I.  225  ;  II.  43 

V.  Reppard  I.  178 

Clements  v.  Brown  II.  634 

Clerk  V.  Blackstock  I.  251  ;  II.  557, 

560 

V.  Mundall  II.  41,  156 

Gierke  v.  Martin  I.  12 

Clermont  v.  Tullidge  II.  476 

Cleve  V.  Jones  II.  653 

V.  Mills  II.  387,  390 

Cleveland  v.  Covington  I.  243 

V.  Loder  II.  409 

V.  Worrell  II.  290,  304 

Clifford  V.  Parker  II.  550,  573,  577, 

578,  579 

Cline  V.  Miller  I.  207 

Clinton  Bank  v.  Ayres  II.  444 

Clippinger  v.  Creps  I.  241  ;  II.  245 

V.  Hepbaugh  I.  214 

Clode  V.  Bayley  I.  515 

Clopper  V.  Union  Bank     I.  229,  326,  537, 

558;  II.  250 

Closson  V.  Stearns  I.  22;  II.  16 

Clough  V.  Bond  II.  83 

V.  Clough  II.  624 

V.  Davis  I.  49 

Clouston  V.  Barbiere  II.  121 

Clugas  V.  Penaluna  II.  321,  330 

Clute  V.  Small     I.  276 ;  II.  563,  570,  573 

Cobb  V.  Little  II.  252 

V.  O'Neal  II.  502 

j;.  Page  1.199 

V.  Titus  n.  428,  429 


xxxirri 


INDEX   TO   CASES    CITED. 


Coburn  v.  Kerswell  II.  152,  153,  177 

Cochituate  Bank  r.  Colt  II.  94 

Cock  V.  Coxwell  11.  550 

V.  Fellows  I.  31 

V.  Taylor  11.  169 

Cocke  V.  Bank  of  Tenn.  I.  502 

V.  Branch  Bank  I.  138 

V.  Chancy  II.  160 

V.  The  Commonwealth  I.  584 

V.  Dickens  11.  450 

Cockell  V.  Bridgeman  11.  297,  306 

V.  Gray  I.  384 

Cockerell  v.  Barber  II.  369 

Cockrill  V.  Hobson  II.  643 

V.  Ivirkpatrick  II.  507 

Cocks,  Ex  parte  II.  397 

V.  Masterman    I.  319,  516  ;  II.  81, 

284,  596,  598 

v.  Nash  I.  249 ;  II.  237 

Cockshott  V.  Bennett  I.  2 1 6 

Coco  v.  Lacour  II.  205 

Coddington  v.  Bay  II.  43,  268,  493 

Davis  I.  563,  575,  578, 

582,  643,  647 

Codman  v.  Lubbock  II.  91 

Codwise  v.  Gleason  II.  502 

Coggill  V.  American  Bank  I.  322  ;  II.  80, 

212,  483,  590,  591 

Cohea  v.  Hunt  I.  419,  435 

Cohen  V.  Morgan  II.  257 

Colbert  v.  Daniel  II.  629 

Coiburn  v.  Averiir  II.  124,  125,  658 

Colby  r.  Colby  11.611 

Coldrcn  v.  Miller  II.  96 

Cole  V.  Blake  II.  625 

V.  Gushing  II.  19,  94,  251 

T.  Hundley  II.  507 

V.  Lockhart  II.  421 

r.  Kunnells  II.  646 

V.  Sackett  II.  152,  159,  202 

V.  Scot  II.  167 

V.  ThruU  II.  230 

Colciian  V.  Cooke  I.  40 

Coleman  v.  Bicdcman  II.  453 

V.  Carpenter  I.  515 

r.  Ewing  1.411 

V.  Fobes  II.  658 

V.  Saycr  I.  384,  391,  404 

V.  Smith  I.  639 

V.  Wolcott  II.  305 


Colerick  r.  McCleas 

L237 

Coles  V.  Bell 

II.  209 

V.  Jones 

11.45 

Colkett  V.  Freeman 

I. 

415,  416 

Collamer  v.  Goodrich 

n.  411 

V.  Langdon 

IL  153 

Collester  v.  Hailey 

n. 

636,  646 

Collett  v.  Frazier 

IL  661 

Collier  v.  Nevill 

n.  428 

Collinge  V.  Heywood 

II.  638 

Collins,  Ex  parte 

11.82 

V.  Benning 

II.  644 

V.  Butler 

1.457 

V.  Johnson 

L97 

V.  Jones 

IL  613 

V.  Lincoln 

L47 

;  IL  189 

V.  Martin        I. 

184,  185, 

224 ;  IL 

43,  265,  435,  493 
CoUis  V.  Emett  I.  32,  109  ;  II.  11,  50, 

585,  592 

V.  Stack  II.  650 

Collott  V.  Haigh  I.  229,  325  ;  II.  249, 

250 

Collyer  v.  Willock  IL  656 

Colt  V.  Noble  L  515 

Columbia  v.  Amos  II.  510 

Colvin  V.  Holbrook  II.  209 

V.  The  State  II.  585 

Colyer  v.  Craig  II.  606 

Combe  V.  Woolf  L  237  ;  II.  247 

Conibes's  Case  I.  90 

Combs  V.  Bateman  II.  206 

Comcgys  v.  Booth  I.  239 ;  II.  245 

Commercial  Bank  v.  Benedict  I.  231, 

232;  II.  100,  298,  301,  302,  313,  314 

Commercial  Bank  r.  Clark        I.  622,  626 

V.  Cunningham   I.  229, 

326 ;  IL  250 

».  French    L  170,238; 

IL  449,  451 

V.  Goto  I.  488 

V.  Ilamer       I.  419,  435 

v.  Hughes     I.  464,  537, 

632;  II.  71 

r.King  L  512,  518 

V.  Lum  II  577 

V.  Newport  M  in. 

Co.  1.170 

r.  Norton       I   10(^,  108 
T.  Routh  I.  60 


INDEX   TO   CASES   CITED. 


xxxu 


Commercial  Bank  ».  Strong    I.  478,  482, 
488,  489, 490 
of  Natchez  V.  Clai- 
borne II.  445 
ofPenn.  v.  Union 
Bank  of  N.  Y. 

II.  209 
Commissioners  of  Berks  Co.  v.  Ross 

II.  246 
of  Knox  Co.  V.  Aspin- 

wall  1. 35 

&c.  T.  Hanion         II.  577 
Commonwealth  v.  Carey  II.  476 

».  Frost  11.411,418 

».  Green  11.318 

».  Johnson        I.  198,  215 
r.  Manley  1.79,88; 

n.  447 

V.  Miller         II.  425,  588 
V.  Sankey  II.  586 

V.  Stephenson         II.  588 
V.  Stone         II.  105,  107, 
194, 195 
V.  Taylor  II.  588 

V.  Vanderslice  I.  242,  246 
V.  Ward  II.  545 

».  Whitney  II.  587 

T.  Wilson  n.  588 

of  Kentucky  v.  Bass- 
ford  II.  380 
Comparet  v.  Ewiiig  II.  397 
Comstock  V.  Smith  II.  152 
Conant  v.  Hitt                                    II.  645 
Concord  v.  Pillsbury                 II.  603,  609 
Condit  V.  Baldwin  II.  411 
Cone  V.  Baldwin          I.  259  ;  II.  275,  276 
Conger  v.  Tradesman's  Bank          II.  412 
Conicr  .&  Holland's  Case  II.  235 
Conklin  v.  Parsons                            II.  616 
V.  Waltz                              II.  620 
Conkling  v.  King                     II.  160,  161 
».  Underbill                       11.419 
Conn  V.  Coburn                             I.  68,  244 
V.  Gano  I.  310 
V.  Penn                                     II.  397 
Connecticut  v.  Jackson                    II.  424 
V.  Johnson                     II.  425 
&  Passumpsic  Rivers  R. 
Co.  V.  Newell  II.  33 
Conner  r.  Routh                     I.  39  ;  11.  569 


Connerat  v.  Goldsmith 

L244 

Connery  v.^  Kendall 

L  275 

Connolly  v.  Goodwin 

I.  635 

Connor  v.  Bellamont 

II. 

376,  379 

V.  Martin 

I 

78, 

79;  II.  3 

V.  Winton 

II.  607 

Conoway  v.  Spicer 

II.  659 

Coiiro  V.  Port  Henry  Iron  Co. 

I.  169 

Conroy  v.  Warren      I. 

51; 

II.  58,  59,  72, 
73,  74,  84 

Consequa  v.  Willings 

II.  376 

Converse  v.  Moulton 

II.  513 

Conway  v.  Case 

11.84 

Conwcll  V.  Morris 

IL  645 

V.  Puraphrey 

11.415 

Cook  V.  Bank  of  Lexington 

II.  434 

V.  Darling 

I. 

393, 396 

V.  Gray 

1.393 

v.  Helms 

I. 

224,  255 

V.  Litchfield       L 

471, 

473, 

641  ;  IL 

328 

343, 

348, 

377,  380 

V.  Martin          I. 

310, 

431, 

533,  537, 
550,  551 

V.  Mix 

L210 

V.  Moffat 

II.  328 

V.  Renick 

I. 

394,  489 

V.  Sanford 

L99 

V.  Satterlee 

1.45 

V.  Southwick 

II.  120 

Cooke  V.  Colehan 

I.  40 

V.  Darwin 

IL  292 

V.  French 

L469 

V.  Nathan 

II. 

122,  141 

Cookendorfer  v.  Preston 

I.  397 

Coolbroth  v.  Purinton 

I.  29 

Cooley  V.  Lawrence 

II.  125 

».  Rose 

II. 

424,  463 

Coolidge  V.  Brigham 

11.38 

V.  Inglee 

I 

.216 

;  II   543 

V.  Payson 

I 

294,  295 

V.  Ruggles 

L45 

Coombe  v.  Miles 

II.  408 

Coombs  V.  Ingram 

I.  195 

Coon  V.  Brook 

1.78 

Cooper  V.  Dedrick     II.  130,  132,  143,  638 
V.  Le  Blanc  II.  590,  593 

V.  McClurkan  I.  126 

V.  Meyer  I.  322  ;  II.  50,  483, 

591,  592 
T.  Parker  II.  648 


XI 


INDEX   TO   CASES    CITED. 


Coopei  p.  Sandford 
V.  Scott 
V.  Shepherd 
V.  Tappan 


II.  372 
II.  2.33 
II.  436 
II.  501 


V.  Waldegrave     II.  325,  326,  341, 

342,  371,  377 

V.  Willomatt  II.  436 

Coore  T.  Callaway  II.  209,  489 

Cojje  V.  Arberry  II.  301 

V.  Daniel  II.  374,  439 

V.  Smith  I.  237,  238 

Copp  V.  M'Dugall       T.  444,  559  ;  II.  498 

V.  Sawyer  I.  178;  II.  55 

Copper-Miners'  Co.  v.  Fox  I.  163 

Coppock  T.  Bower  I.  196,  215 

Corbett  v.  State  of  Georgia  II.  597 

Corbit  V.  Bank  of  Smyrna     II.  89,  94,  99, 

100,  103,  106,  107,  153,  187,  189,  191, 

192,  194,  196 

Corcoran  v.  Powers  II.  427 

Cordwell  v.  Martin  II.  568,  573 

Corfield  V.  Parsons  II.  209 

Corlics  V.  Gumming  II.  156 

Cormuna  v.  Bank  of  Louisiana         I.  495 

Cornell  v.  Moulton  I.  381,  3S6 

Corney  v.  Da  Costa  I.  530,  5.54,  561, 

573,  575 
Cornforth  v.  Rivett  II.  455,  605 

Cornish  v.  Bryan  II.  46 

Cornu  r.  Blackburne  I.  152 

Cornwall  v.  Gould       I.  632  ;  II.  151,  204 
Corp  f.  M'Comb  1.395,515 

Corser  v.  Craig  I.  291,  331  ;  II.  47 

Cory  V.  Scott       I.  534,  541,  551,  555,  630 
Cospey  V.  Turner  II.  580 

Costar  V.  Davlcs  II.  153 

Coster  V.  Bank  of  Georgia  II.  168 

V.  Dilworth  II.  4  1 1 

V.  Thomason  I.  494,  502 

Costin  r.  Rankin  I.  482 

CoU  V.  Buck  I.  40 

Cotes  V.  Davis        I.  78,  79,  81,  82  ;  II.  3, 

479, 489 
Cottam  V.  Partridge  II.  648 

Cotten  V.  Williams  II.  5.53,  580 

Cotton  V.  Ikasly  II.  297 

V.  Kvans  I.  125,  126 

r.  Godwin  I.  245  ;  II.  621 

Cottrell  V.  Conklin    II.  120,  121,  123,  520 
Couch  V.  Meeker  I.  51 


Coucli  I'.  Mills 

V.  Waring 
Coulon  V.  Champlin 
Coulson's  Case 

V.  Walton 
Coulter  V.  Robertson 


I.  249 
II.  241,  2J4 

I.  489 
II.  586 
II.  579 
II.  420 


County  of  St.  Charles  v.  Powell      II.  663 

Conpry  v.  Dufau  II   525 

Course  v.  Shackleford  I.  381,  382,  520, 

529 

Coursen  v.  Hamlin  II.  611 

Coursin  v.  Ledlio     I.  44,  228  ;  II.  453,  456 

Courtois  V.  Carpentier  II.  318 

Cousins  V.  Paddon  II  602 

V.  Thompson  II.  92 

Coutant  V.  Schuyler  I.  179  i  II.  54 

Covcly  V.  Fox  II.  182 

Covington  v.  Comstock  I.  309,  429 

Coward  v.  Hughea  I.  79 

Cowden  v.  Elliot  II.  608 

Cowe  V.  Halsall  II.  547 

Cowell  V.  Edwards  II.  254 

V.  Simpson  II.  165 

V.  Watts  I.  156 

Cowic  V.  Harris  I.  41 

Cowlcs  V.  Harts  I.  472 

V.  McVickar  II.  428 

Cowley  V.  Dunlop  I.  199  ;  II.  455 

Cowper  V.  Smith  II.  134,  248 

Cowperthwaite  r.  Sheffield        I.  290,  332, 

334,  335,  506 ;  II.  60,  226 

Cowqua  T.  Lauderbrun  II.  372 

Cox  V.  Adams  II.  336 

V.  Bailey  II.  658 

V.  Baldwin  II.  162 

r.  Bank  of  Tennessee        1.660,661 

V.  Coleman  I.  287,  302 

V.  Davis  II.  633 

r.  Earle  1.317 

V.  Fen  wick  II.  167,  169 

V.  Troy                    I.  48,  291  ;  II.  573 

V.  United  States  II.  318 

?'.  Wallace  II.  510 

V.  AViiliams  II.  469 

Coxe  V.  ILiid<inson  IT.  153, 160,  '217 

V.  State  Bank  II.  91 

Cox  on  V.  Lyon  II.  474 

Coyle  V.  Smitli  I.  552,  553 

Crabtrec  v.  Clark  II.  578,  580 

V.  Cliatt  II.  ri2 


INDEX    TO   CASKS   CITED. 


xl= 


Crabtrcc  v.  May  I.  77 

Craig  V.  Baptist  Educational  Soc.    II.  .511 

«;.  Brown  II.  30 

V.  Calloway  Co.  Ct.        II.  656,  658 

r.  Craig  I.  179;  II.  55,357 

V.  City  of  Vicksburg    II.  33,  34,  11 5 

Grain  v.  Cohvell    I.  600,  601,  619  ;  II.  247 

Cram  v.  Hendricks  II.  428 

V.  Sherburne  I.  590,  595,  604 

Cramlington  v.  Evans        I.  385,  391 ;  II. 

210,  451 

Craneh  v.  White       II.  265,  266,  293,  435 

Crane  v.  Ailing  I.  248 

z».  Hubbel  11.411 

V.  Newell  II.  240,  245 

V.  Stickles  I.  242 

Crank  v.  Frith  II.  475 

Crawford  v.  Berry  II.  160 

».  Branch  Bank        1.471,474, 

485,  505  ;  II.  339,  342,  344,  346 

B,  Cully  I.  45 

».  Johnson  11.406,417 

r.  Millspaugh  II.  235 

V.  Stirling  II.  605 

V.  Summeis  II.  297 

Crawfurd  v.  Royal  Bank  II.  281,  283 

Crawley  v.  Littletield  II.  639 

Crawshay  v.  Ilomfray  II.  169 

Creamer  v.  Perry  I.  566,  571,  592, 

595,  598 

Creath  v.  Sims  I.  240 ;  II.  240,  533 

Creed  v.  Stevens  II.  419 

Cremer  v.  Higginson  II.  225,  227 

Crenshaw  v.  Jackson  II.  136 

».  M'Kiernan     1.393,410,412, 

5f6 

Cripps  V.  Davis    I.  270  ;  II.  9,  596,  604,  661 

Crisp  V.  Black  II.  223 

V.  Griffiths  II.  151,  154 

Crisson  v.  Williamson  I.  496 

Crist  V.  Garner  II.  617 

Critchlow  V.  Parry      II.  25,  212,  482,  484, 

589 

Crocker  v  Arey  II.  634 

V.  Clements  II.  629 

».  Getchell  1.471,476,514; 

II.  520 

V.  Gilbert  11.126,  143 

V.  Whitney  I.  333 

Crocket  v.  Trotter  II.  204 

d* 


Crockett  v.  Thomason  II.  550,  573 

Crofts  V.  Beale  I.  196;  II.  127 

Cromwell  v.  Arrott  I.  377,  380 

V.  Hynson    I.  365, 366,  493,  500 

v.  Lovett  II.  83,  87 

Cronise  v.  Kellogg  I.  326 

Cronk  v.  Frith  II.  480 

Crook  V.  Jadis  I.  258  ;  II.  28, 1 87,  272,  277 

Crookshank  v.  Mallory  II.  605 

V.  Rose  I.  217 

Cropper  v.  Nelson  II.  468 

Crosby  v.  Grant  I.  259,  263,  417 

V.  McDermitt  II.  395 

V.  Morton  I.  337 

V.  Wyatt         I.  240,  241 ;  II.  135, 

245,  533 

Cross  V.  Rowe  II.  445 

Crosse  v.  Smith  I.  488,  489 

Crossen  v.  Hutchinson  I.  446,  528 

Grossman  v.  Fuller  II.  430 

Crostliwait  v.  Ross  1. 138 

Crotty  V.  Hodges  II.  580 

Croughton  v.  Duval  I.  237 

Crow  V.  Watkins  II.  605 

Crowe  V.  Clay  II.  286,  292,  295,  296,  308 

Crowley  v.  Barry  I.  362,  495,  634  ; 

11.  466 
Crowiiinshield  v.  Robinson  II.  607 

Croxen  v.  Worthen  I.  616 

Crozer  v.  Chambers  II.  519 

Cruciiley  v.  Clarance     I.  33,  112  ;  II.   11, 

448 

Cruger  ;;.  Armstrong         I.  511,  537,  552; 

II.  57,  58,  59,  71,  73,  84 

Cruickshanks  v.  Rose  II.  232 

Crump  V.  Nicholas  II.  422 

Crutchly  v.  Mann  I.  33,  58 ;  II.  480 

Cuff  V.  Brown  I.  203 

CuUen  V.  Green  II.  623 

Cullurn  V.  Branch  Bank  I.  210,  224 

V.  Casey  I.  651 

Culver  V.  Parish  I.  264 

Cumber  ».  Wane  II.  154,  204 

Cumberland  Bank  v.  Hall        II.  559,  577 

Cuming  v.  French  I.  599,  600,  616 

V.  Marshall  II.  315 

Cummings  v.  Dennett  II.  128 

V.  Freeman  I.  25 

t;.  Putnam  II.  620 

V.  Williams  (4  Wend.)  II.  413 


xlii 


INDEX   TO   CASES   CITED. 


Cumniinu  v.  Williams  (5  J.  J.  Marsh.) 

D. 

II.  608 

V-  Wire 

II.  414,  420 

Dabbs  V.  Humphries 

IL  456,  652 

Cumpston  c.  McNair 

II.   141 

Dabney  v.  Campbell 

I.  402,  404 

Cundy  v.  Marriott 

I.  559 

V.  Stidger 

1.502 

Curliffe,  Ex  parte 

11.85 

Da  Costa  v.  Cole 

I.  543 

7'.  Booth 

I. 

258;  11.  271 

V.  Davis 

11.  373 

V.  Whitehead 

I 

.  17;  II.  473 

V.  Hatch 

IL319 

Cunningham  v.  Hall 

II.  406 

V.  Jones 

L  190 

V.  Wardwell 

I.  62,  2S8  ; 

Daggett  V.  Pratt 

IL  392 

II.  524 

V.  Tallman 

IL  2.54 

Curan  v.  Colbert 

I.  237,  246 

Dagnall  v.  Wigley 

IL411 

Curie  V.  Beers 

I.  45 

Dale  V.  Lubbock 

L  478 

Curlewis  v.  Corfield 

I.  617 

V.  Pope 

11.512 

V.  Lord  Mornin 

gton 

11.641,646 

Dalrymple  v.  Dalrymplo 

II.  350 

Currie  v.  Child 

II.  480 

Dal  ton  V.  AVoburn 

I.  245 

Currier  r.  Hodgdon 

11.50 

Daley  v.  Slater 

I.  514 

Curry  v.  Bank  of  Mobile 

1.494,509,  516; 

Dana  v.  Angel 

IL  181,  187 

II 

30,  480,  564 

V.  Conant 

II  142 

V.  Herlong 

I.  555 

V.  Kemble 

L  494,  496 

V.  Kurtz 

II.  589 

V.  Sawyer                   I. 

417,  418,  420 

Curtis  V.  Bemis 

II   454 

V.  Underwood 

II.  482 

V.  Carpentier 

II.  372 

Danforth  v.  Culver 

II   649,  660 

V.  Hubbard 

II. 

151,  152,  176 

Dangerfield  v.  Wilby 

IL  151,  294, 

V.  Ingham 

II.  153 

296.  308 

V.  Leavitt 

II.  409 

Danks,  Ex  parte 

IL  623 

V.  Rickards 

I.  33 

Daniel  t'.  Cartony                I 

218;  IL  431 

V.  Rush 

II.  163 

V.  Daniel                II. 

559,  577,  580 

V.  Smallman 

II.  141 

V.  Ray 

IL  524 

V.  State  Bank 

1.482,487,  493 

Daniels  v.  Kyle          I.  273  ; 

II.  68,  73,  74 

V.  Wakefield 

II.  502 

Dann  v.  Norris 

IL  442 

Curtiss  V.  Greenbanks 

II.  620,  625 

Darbishire  v.  Parker   I.  269, 

479,  507,  509 

V.  Martin       I.  583,  591,  609,  611 ; 

Darling  v.  March        I.  140, 

142,  144,  145 

II.  472 

V.  Mcachum 

II.  635 

Gushing  v.  Gore     I.  199, 

201 

,  552)11.84, 

v.  Wells 

II.  636 

86 

Darnell  v.  Williams 

I.  207 

V.  Wyman 

II.  530 

Da  Silva  v.  Fuller 

IL  255 

Cushman  v.  Domcnt 

II.  120,  519 

I)aul)uz  V.  Morshcad 

I.  152;  IL  8 

V.  Haynes 

I.  38,  260 

Davoga  v.  Moore 

L33 

Cuthbert  r.  Bowie 

II.  535 

Davenport  v.  Davis 

II.  478 

V.  Haley 

II.  419 

V.  Freeman 

II.  469 

Cutler  V.  How 

II.  414 

V.  liunlett 

L  126 

V.  Rao 

II.  169 

V.  Woodbridgo 

IL46 

Cults  V.  Perkins 

I.  287,333 

David  V.  Ellice 

II.  199,  202 

V.  United  States 

II.  553 

V.  Eloi 

TL17J 

Cuyler  v.  Cuyler 

II.  532 

V.  Porter 

IT. 318 

V.  Nellis 

I.  497 

V.  Preccc 

IT.  217 

V.  Stevens      11.401, 

402,477,  515 

Davidson  v.  Bridgeport 

IL  1.53,  218 

V.  Cooper   II.  553 

575,  577,  'tSO 

V.  Harrisson 

II.  0  54 

INDEX    TO   CASES    CITED. 


xliii 


Davidson  v.  Stanley  I.  91,  92,  116  ; 

11.  489 

Davie  v.  Stevens  II.  9 

Davies  v.  Ciiim  II.  639 

V.  Dodd  II.  310 

V.  Edwards  II.  6.56 

».  IIumi)liieys        II.  253,  254,  638 

V.  Stainbank  I.  239  ;  II.  502 

V.  Watson  II.  598 

V.  Wilkinson  I.  38;  II.  146 

Davis  &  Desauque,  Estate  of  I.  135, 

145  ;  II.  200 

V.  Biink  of  River  Raisin        II.  107 

v.  Barckay  II.  233 

■D.  Barker  II.  286 

V.  Barrington  I.  233,  235 

r.  Beekham  I.  497 

V.  Benbow  II.  305 

V.  Bradley  I.  290 

r.  Briggs  I.  137;  II.  440 

U.Carlisle  11.563,577 

r.  Child  11.170 

V.  Clarke  I.  62,  289,  313 

V.  Clemson  II.  381 

V.  Coleman  II.  328,  377,  380, 

559,  658 

r.  Cotten  II.  640 

V.  Dodd  II.  151,  286,  287,  296, 

297,  302 

V.  Emerson  II.  253 

V.  Francisco  I.  447,  530 

V.  French  I.  161 

V.  Garr  I.  35  ;  II.  645 

V.  Gowen         I.  482,  586,  587,  595, 

601,  619 

V.  Greely  II.  395 

V.  Gyde  II.  164 

V.  Hanly  I.  511,  512 

V.  Hardacre  II.  408,  412 

v.  Huggins  I.  237 

V.  Jacquirn  I.  67 

V.  Jenney  II.  550 

V.  Lane  II.  53 

V.  McCready  I.  261 

V.  Miller  II.  50 

V.  Minor  II.  383 

V.  New  Brig  II.  1 7o 

■     r.  Sawtelle  11.  467,  470 

r.  Smyth  II.  394 

r.  Steiner  II.  652 


Davis  V.  Williams  I.  498 

Davison,  Ex  parte  I.  4C 

Davlin  V.  Hill  II.  534 

Dawc  V.  Holdsworth  II.  228,  229,  230 

Dawkes  v.  De  Lorane  I.  43 

Dawson's  Case  II.  586 

Dawson  v.  Bank  of  Illinois  II.  504 

V.  Callaway  II.  632 

V.  Dillon  II.  620 

V.  Kearton  I.  179 

V.  Morgan  I.  662  ;  II.  458 

Day  V.  Cummings  II.  416 

V.  Elmore  II.  130,  141,  142 

V.  Lyon  II.  439 

V.  Nix  I.  203 

V.  Whitney  II,  46 

Dayton  r.  Trull  11155,182 

Deacon  v.  Stodhart  II.  216 

Dean  v.  De  Lezardi  I.  41  ;  II.  514 

V.  Hall  II.  25,  132,  519 

V.  Hewit  II.  220,  437,  662 

V.  Ncwhall  I.  249 ;  IL  238 

V.  Richmond  I.  78  ;  II.  447 

V.  Speakman      I.  232  ;  II.  290,  291, 

294,314 

V.  Williams  II.  425 

Dearborn  v.  Cross  II.  529 

Dease  v.  Jones  II.  637 

Death  v.  Serwonters  II.  455 

Dcaver  v.  Carter  II.  638 

De  Bengareche  v.  Pillin  I.  427 

De  Berdt  v.  Atkinson      I.  447,  529,  556, 

557 
De  Bernales  v.  Fuller  II.  392 

Debesse  v.  Napier  I.  335 

Deblicux  ».  BuUard  1.515 

De  Bruhl  v.  Neuffer  IL  228 

Debuys  v.  Mollere     I.  595,  596,  604,  620, 

622 
Decatur  Bank  v.  Spence  I.  110,  111 

Decker  v.  Mathews  II.  28,  293 

De  Cordova  v.  Atchison  II.  443,  446 

Decouche  v.  Saveticr  II.  369 

Dedham  Bank  v.  Chickering  II.  227,  232 
Dedman  v.  Williams  I.  244 

Deering  v.  Sawtel  II.  469 

V.  Winchelsea  IL  253 

De  Forest  v.  Frary  I,  39,  43 

T.  Strong  n.  410,  411 

De  Havilland  v.  Bowerbank  II.  393 


S.liV 


INDEX    TO    CASES    CITED. 


Dehers  r.  Harriot  I.  60,  62,  358,  382, 

404;  n,  261,  312 

Dehuffr.  Turbett  I.  237 

Deibler  r.  Barwick  II.  167 

De  La   Chaumette  v.  Bank   of  England 

I.  223,  226  ;  II.  257,  266,  271,  280, 

283,  293,  326,  334,  342,   353,  355 

De  la  Courtier  v.  Bellamy     I.  41,  49,  386 

Delafield  v.  State  of  Illinois        II.  33,  115 

Delano  v.  Bartlett  II.  493,  494 

De  la  Torre  v.  Barclay  II.  25 1 

Delauney  v.  Mitchell      I.  186  ;  II.  20,  27 

De  la  Vega  v.  Vianna  II.  319,  326, 

366,  367 

Dclegal  V.  Naylor  II.  369 

Deloach  v.  Turner  11.  647,  649 

Dclvalle  r.  Plomer  11.319 

Demeritt  v.  Exchange  Bank  II.  364 

Deminds  m.  Kirkman        I.  509,  511,  512 

Deming  v.  Norton  II.  246 

Den».  Clark  I.  151 

v.  Richards  II.  646 

V.  Wright  II.  572,  574 

Denegre  v.  Hiriart  I.  471,  473 

V.  Milne  I.  581 

Dennen  v.  Haskell  I.  264 

Dennett  v.  Goodwin  I.  45  ;  II.  637 

V.  Wyman  I.  264,  269 

Dennie  v.  Hart  II.  86,  159 

V.  Walker  1.412,449,452;  11.461 

Dennis  v.  Jaffr^y  II.  372 

V.  Morrice  I.  599,  630,  632 

V.  People  II.  588 

V.  Rider  I.  237 

Denniston  v.  Bacon  II.  28 

V.  Imbrie  I.  554;  II.  154, 

397,  426 

Dcnnistoun  c.  Stewart  I.  476,  646 

Dennison  v.  Brown  I.  200 

Denny  v.  Palmer        I.  493,  509,  529,  556, 

563,  566,  567,  573,  574 

T.  Smith  II.  639 

Dcnston  v.  Henderson  II.  370 

Dent  V.  Dunn      II.  86,  394,  396,  621,  626 

Denton  v.  Embury  II.  630 

Depau  V.  Humphreys      II.  318,  328,  336, 

337,  338,  346,  379 

Depeau  r.  Wnddington  I.  224 

Depcw  V.  Wheelnn  II.  290,  291 

Deranco  r.  Montgomery  11.  645 


'  Derickson  r.  Whitney  II.  498 

De  Ridder  I'.  Schermerhom  I.  251 

Des  Arts  v.  Leggett        II.  294,  300,  303, 

623,  625 
Desbrowe  v.  Wetherby  II.  548 

Descadillas  v.  Harris  II.  152,  172 

Desha  v.  Stewart  II  440 

Deshon  v.  Eaton  II.  649 

De  Silva  v.  Fuller        I.  230  ;  II.  81,  596 
De  Sobry  v.  De  Laistre  II.  318,  320, 

376 
Despatch  Line  of  Packets  v.  Bellamy 

Manuf.  Co.  I.  97 

Dessau  t;.  Bours  II.  518 

Destrehan  v.  Fazende  II.  641 

De  Tastet  v.  Baring  I.  648,  65? 

De  Tastett  v.  Crousillat  II.  605 

Devallar  v.  Herring  II.  268 

Devaynes  v.  Noble  II.  61,  222 

Develing  v.  Ferris  I.  570 

Devoe  v.  Moffatt  II.  72,  87 

Dewar  r.  Span  II.  378,  379 

Dewdney,  Ex  parte  II.  644 

Dewey  v.  Bowman  II.  392 

».  Cochran  L  236  ;  II.  445 

De  Witt  V.  Bigelow  II.  248 

De  Wolf  V.  Johnson         II.  328,  337,  376, 

377,  378,  420 

V.  Murray  I.  421,  435,  438, 

471,  477,  646 

D'Wolf  i;.  Rabaud  IL  129 

Dexlaux  r.  Hood  1.392 

Dexter  v.  Clemans  II.  521 

Deyraud  v.  Banks  I.  367,  422 

De  Zeng  v.  Bailey  I.  247 

V.  Fyfe  I.  226 

Dil)ble  ».  Duncan  II.  520 

Dick  r.  Leverick  I.  322 

Dicken  v.  Johnson  II.  634 

Dickenson  v.  Dickenson  I.  22 

V.  Hatfield  II.  652 

Dickerson  v.  Board  of  Commissioners 

I.  235 
V.  Burke  I.  255 

r.  Turner  L  637;  II.  498 

Dickins  v.  Bcal  L  478,  493,  510,  .537,  .539, 
540,  541,  542,  642;  II.  492,  496 
Dickinson  v.  Bowes  I.  306,  427 

r.  Burr  II.  442 

r.  Hall  I.  204,  2f  6 


INDEX   TO   CASES   CITED. 


xlv 


Dickinson  v.  King 

V.  Prentice 
V.  Tunstall 
».  Valpy     1.138,140^ 

V.  Williams 
Dicks  V.  Ciish 

Dickson,  Ex  parte  II. 

V.  Primrose 
V.  Thomson 
Didier  v.  Davison  II. 

Digole  V.  London  &  Blackwall  K 

Co. 
Dillard  v.  Philson 
Dillon  7'.  Dudley 

V.  Rimmer  II. 

Dilworth  v.  Carter 
Dingwall  v.  Dunster  I. 

Dinsmore  v.  Bradley 

V.  Dinsmore 
Disborougli  v.  Bidleman 

V.  Jones 
Divcrsy  v.  Moor 

Dix  V.  Van  Wyck  II. 

Dixie's  Case 
Dixon's  Case 
Dixon  V.  Dixon 

V.  Elliott 

V.  Holdroyd 

V.  Nuttall  I.  384,  405 

v.  Parkes 

V.  Ramsay 
Dobr.  Halsey  1.125,127 

Dobree  v.  Eastwood     I.  478, 481 , 
Dockray  v.  Dunn  I. 

Dod  V.  Edwards         I.  230,  261, 

Dodge  V.  Bank  of  Ky.  I. 

Doe  V.  Barnard  II. 

V.  Brown 

V.  Burnham  I. 

V.  Figgins 

V.  Gooch 

V.  King 

V.  Newton 

V,  Suckcrmore 

V.  Thompson 

V.  Warren  II. 

d.  Tatum  r.  Catomore     II. 


II.  153 

II.  466 

II.  392 

II.  180, 

478 

II.  647 

I.  358 

15.5,  184 

II.  275 

II.  648 

636,  652 

ailway 

I.  163 
II.  646 
II.  393 

206,  234 
II.  632 

324,  325 
II.  364 
II.  651 
II.  658 
II.  659 
1.326 

415,  419 
11.418 

II.  82 
11.  631 

1.615 
II.  639 
;  II.  644 
II.  397 
II.  327 
;  II.  478 
513,514 
199,  310 
328  ;  II. 
215,  236 
502,  509 
408, 412 
11.413 
213,  279 
11.  453 
II.  413 
11.421 
II.  477 
II.  477 
11.641 
424,  425 
576,  577, 
580 


Dogan  r.  Ashbey  IT.  162,  177 

Dole  V.  Gold  I.  470,  477 

DoUfus  V.  Frosch        I.  358,  396,  397,  399, 

464,  537,  539  ;  II.  220,  442,  480 

Doman  v.  Dibden  II.  39? 

Don  V.  Lippmann     II.  320,  326,  3.33,  342, 

367,  377,  383,  385 

Donaldson  v.  Benton 

V.  Means 

Donath  v.  Broomhead 

Done  V.  Walley 


II.  502 

I.  596,  597,  600 

II.  178 

II.  253 

II.  325,  364 

I.  611 

II.  298,302,  305, 

309 

II.  138 

II.  369 


Doncily  ;•.  Corbett 
V.  Howie 
Donelson  v.  Taylor 

Donley  v.  Camp 
Doran  v.  O'Reilly 
Dorchester  &  Milton  Bank  r.New  Eng- 
land Bank  I.  480 
Dormady  v.  State  Bank  of  111.         II.  298, 

304,  309 

Dorr  V.  Swartwout  II.  635,  653 

Dorsey  v.  Gassaway  II.  227,  228 

V.  Hardesty  II.  320,  327,  368 

V.  Reese  II.  610 

V.  Watson  I.  596,  622 

Doty  V.  Bates  I.  128,  130 

V.  Blake  I.  247 

V.  Wilson  II.  50 

Dougal  V.  Cowles       I.  124,  135,  288  ;  11. 

154,  157,  161 

Dougherty  v.  Western  Bank      I.  310,  375, 

430,  431  ;  II.  88,  95,  189,  197,  643 

Douglas  V.  Elkins      II.  638,  640,  6.'J0,  651 


Douglass  V.  Rowland 
V.  Rathbone 
■v.  Reynolds 
V.  Scott 
V.  Wilkeson 

Dow  V.  Rowell 
V.  Savward 


II.  130,  140 

II.  140 

II.  140 

II.  567 

I.  33,312 

II.  336.  347 
II.  636 


V.  Tuttle      I.  241  ;  II.  502,  530,  538 


Dowbiggin  v.  Bourne 
Dowdall  V.  Lenox 
Do  we  V.  Schutt 
Dowling  75.  Ford 
Down  V.  Hallinff 


Downe  v.  Hailing 
Downer  v.  Remer 


II.  249 

II.  406 

I.  199;  II.  427 

II.  662 

L  258,272  :  IL  79,  271, 

273,  277,  279 

IL  266 

I   490,  497 


klvi 


INDEX   TO   CASES   CITED. 


Downer  v.  Shaw 
Downes  v.  Church 

V.  Richardson 
Downey  v.  Hicks 
Downing  v.  Backenstoes 

V.  Funk 
Downs  V.  Planters'  Bank 

V.  Webster 
Dows  V.  Cobb 
Dozier  v.  Duffee 

V.  Ellis 
Draco,  Brig 
Diage  V.  Ibberson 

V.  Nctter 
Drake  v.  Elwyn 
V.  Hcnly 
V.  Mitchell 
V.  Ramey 
V.  Rogers 
])taper  v.  Clemens 
V.  Glassop 

V.  Jackson     I.  87,  88, 
V.  Pattina 
V.  Ronieyn 
T.  Snow 
V.  Trescott 
V.  Weld 
Drawn  v.  Cherry 
Drayton  v.  Dale 
Drew  V.  Drew 
V.  Towle 
Drinkwater  v.  Tebbetts 
Drury  v.  Macaulay 

V.  Smith  II.  89,  92,   188 

V.  Vanncvar  II.  448,  637 

Dry  Dock  Bank  v.  Am.  Life  Ins.  & 

Trust  Co.         11.  432,  433 
Du  Belloi.K  V.  Waterpark         II.  395,  396, 

397 
I.  70 
I.  241 
II.  637 
II.  472 
II.  319 
I.  282 
II.  210 
II.  502 
II.  651,  c,r,c 
II    54 


II.  654 

I.  60 

II.  565,  573 

II.   154,  161 

I.  228,  408 

1.198 

I.  509,  511, 

512,  518 

II.  505 

11.34 

II.  502 

II.  636 

II.  173 

I.  215 

I.  328;  II.  236 

I.  136 

II.  469 

II.  163 

II.  305 

I.  49;  II.  514 

I.  362,  366,  367 
II.  631 

;  II.  447 
I.  22 
II.  246 

II.  125,  129,  132 
11.407,  410,  415 

II.  121,  122 

1.45 

70,  153,321;  II.  483 

II.  635 

I.  209,  210;  II.  606 

I.  580,  585,  589 

I.  45 


Dubose  V.  Wheddon 
Dubuisson  v.  Folkes 
Duckett  V.  Cridcr 
Duckham  v.  Wallis 
Du  Costa  V.  Cole 
DnCaur  v.  Oxcnden 
Duff  V.  East  India  Co. 

V.  Ivy 
Dnfficw.  Phillips 
Duffield  V.  Elwca 


Duffield  V.  Hicks  II.  54 

Dufour  V.  Morse         I.  489,  573,  574,  575 
Dugan  V.  United  States  I.  255,  358  ; 

II.  30,  32,  220,  442,  451,  452, 
456,  480,  564 
Duggan  V.  King  I.  444,  559 

Duhammcl  v.  Pickering  I.  152  ;  II.  8 

Duke  of  Norfolk  v.  Howard       L  371,  421 
Dukes  V.  Dow 


II.  .503 
II.  297,298 
I.  264,  338,  343,  345, 
639 
I.  206  ;  II.  475 
I.  125 
I.  57,  642;  II.  322, 
324, 329 
I.  142 
I.  442,  448,  450, 
459 
V.  Maryland  Savings  Institu- 


Dumas  v.  Powell 
Dumont  v.  Pope 

Dunbar  v.  Marden 
Duncan  v.  Clark 

V.  Course        I 

V.  Lowndes 
V.  M'Culloutrh 


tion 
V.  Reed 
V.  Scott 


IL  412 

I.  240 

L  186,  189,  276; 

II.  485,  493 

L497 


V.  Sparrow 
Duncklee  v.  Greenfield  Steam-Mill 

Co. 
Dundas  v.  Bowler 
Dundass  v.  Gallagher 
Dungannon  v.  Hackett 
Dunham  f.  Day 
V.  Gould 
V.  Pettec 
Dunkle  v.  Renick 
Dunlap  V.  Buckingham 

V.  Hales 

V.  Silver 

V.  Thompson 
Dunlop  V.  Iliggins 

V.  Monroe 
Dunn's  Case 


Dunn  V.  Adams  I, 

T.  O'Kccfo 

V.  Smitli 

V.  Spalding 

V.  White 
Dunning  r.  Chambcrlin 

r.  Pratt 
Dunscomb  v.  Bunker 


II.  46 

II.  336 

L  141 

II.  369 

IL  433 

IL  412 

II.  622,  623 

II.  428 

IL  628 

L74 

IL62 

I.  495,  497 

IL  492 

II.  315 

IL  585 

13  ;  IL  336,  347 

I.  337 

I.  232 

L  239 

L  210 

II.  383 

IL512 

IL  326,  379,  41.5, 

417 


INDEX   TO    CASES   CITED. 


xlvii 


Dupays  v.  Shepherd  I.  312 

Dupeux  V.  Tioxler  II.  275 

Duplein  v.  De  Roven  II.  382 

Dupont  V.  Mount  Pleasant  Ferry 

Co.  I.  170;  II.  4.52 

Dupuy  V.  Gray  II.  502 

Duramus  v.  Harrison  II.  G07 

Durant  v.  Banta  II.  426,  428,  429 

DurcU  V.  Wendell  I.  250 

Durham  v.  Price  I.  568,  596 

Durkin  v.  Cranston  I.  59 

Duinford  v.  Patterson  I.  407 

Duroure  v.  Jones  II.  646 

Durrum  v.  Hendrick  I.  537,  550 

Duryee  v.  Dennison  I.  596,  597 

Dusenbury  v.  Ellis  I.  122 

Dutchess  Cotton  Manuf.  v.  Davis      I.  408 
Duttou  V.  N.  E.  Mutual  Fire  Ins. 

Co.  II.  176,  201 

V.  Poole  I.  297 

V.  Tilden  II.  589 

Duty  v.  Graham  II.  632 

Duvall  V.  Farmers'  Bank  I.  563,  567, 

578,  582,  621,  626;  II.  412,  516 

Dwight  V.  Emerson  I.  381 

V.  Newell  I.  158;  II.  5,  478 

V.  Pomeroy  II.  516 

V.  Scovil  I.  464,  523 

V.  Williams  II.  141 

Dyerr.  Clark  I.  144 

V.  Covington  Township  I.  45 

T.  Hunt  11.318,  359 

Dyke  v.  Mercer  II.  240 

Dykers  v.  Leather  Manuf.  Bank      II.  56, 

59,  60,  61,  62,  66,  78 

Dyott  ».  Letcher  II.  647 


E. 


Eagle  Bank  v.  Chapin      I.  515  ;  II.  358, 

491 
v.  Hathaway        I.  483,  484, 
487 
of  New  Haven  v.  Smith 

11.  37,  101,  189,  306,  600 
Eagleson  v.  Shotwell  II.  408,  416 

Earl  V.  Page  I.  206 

Earle  v.  Reed  I.  69 


Earll  V.  Mitchell 

II. 

407,  434 

Early  v.  Foster 

II.  51S 

V.  Wilkinson 

I.  94.  9= 

Easley  v.  Crockford 

II. 

259 

271,  272 

f^ast  V.  Smith 

I. 

471,  505 

East  Iladdam  Bank  v.  S 

covi 

1 

I.  480 

Easterly  v.  Pullen 

II.  650 

Eastern  Bank  v.  Brown 

I.  495 

V.  Capron 

11.614 

Eastern  Star,  The       II.  86,  171,  172,  180 
East  India  Co.  v.  Tritton         II.  212,  489, 

588 
East  London  Water-Works  Co.  v. 

Bailey  I.  164 

Eastman  v.  Fifield  I.  309 

V.  Laws  II.  619 

V.  Plumer  IL  216 

Easton  v.  McAllister  II.  643 

V.  Pratchett        I.  178,  192;  II.  56 

East  River  Bank  v.  Gedney  I.  273  ;  II.  74 

Eastwood  V.  Kenyon  I.  79 

Eaton  V.  Bell  L  95  ;  II.  425 

V.  Carey  I.  199 

V.  Emerson  II.  504 

V.  Melius  II.  40 

V.  Taylor  I.  148 

Eaves  v.  Henderson  II.  506 

Eccles  V.  Ballard    I.  378,  380, 383  ;  II.  25 

Ecfert  V.  Des  Coudres        I.  381,  382,  520 

Echols  V.  Barrett  II.  640 

Eckel  t7.  Jones  11.518 

Eddy  V.  Bond  II.  554,  555,  560 

Edgar  v.  Greer  I.  373,  394 

Edgecombe  v.  Rodd  I.  215 

Edgell  V.  Stanford  IL  266,  290,  309 

Edgerly  v.  Emerson  I.  242 

T.  Shaw  I.  67,  68,  73,  76 

Edgerton  v.  A'spinwall  II.  542 

V.  Edgerton  I.  228 

Edie  V.  East  India  Co.  L  16,  163  ;  II.  210 

Edington  v.  Pickle  II.  603 

Edis  V.  Bury  L  29,  63,  64 

Ed  meads  v.  Newman  II.  613 

Edmond  v.  Caldwell  IL  151 

Edmonds  v.  Gates  I.  469 

V.  Goater  IL  650 

Edmonston  v.  Drake  I.  298 

Edmunds  v.  Digges  L  103,  106,  194 

V.  Downes  II.  652.  654 

V.  Groves     I.  189  ;  II.  487,  493 


xlviii 


INDEX   TO   CASES    CITED. 


Edon  T.  Smyth  II.  236 

Edson  V.  Fuller   I.  282,  283,  285,  298,301 

V.  Jacobs  I.  488 

Edwards  u.  Bnhannon  11.  168,   169 

V.  Brewer  II.  178 

V.  Dick  I.  218;  II.  407 

V.  H.isbrook  I.  310 

V.  Jevons  II.  130 

V.  Jones  II.  501 

T.  M'Kee  II.  298 

V.  Morris  II.  89,  92 

V.  Moses  I.  540,  546,  552;  II.  71 

V.  Ronald  II.  361,  363,  364 

V.  Scull  II.  439 

r.  Tandy     I.  585,  586,  595,601  ; 

II.  516 

V  Thayer  I.  446,  529 

V.  Todd  II.  606 

Effinger  v.  Henderson  II.  647 

Egan  r.  Thrclfall  11.271 

Egii  V.  Barnett  II.  83,  84,  220 

Ehrin<i:haus  v.  Ford  II.  408 

Eichelber<;er  ».  Finley        I.  534,  535,  537, 

548,549,  552,  553;  II.  71,  73 

Ekins  V.  East  India  Co.  II.  369,  376 

Elder  v.  Warfield  II.  132 

Eldred  v.  Ilawes  I.  310 

Eldrid<^c  v.  Rogers  I.  374 

Elford  r.  Teed  1.306,419 

Elkins  V.  Edwards  11.  632 

Ellett  V.  Moore  II.  647 

Ellicottr.  Martin         I.  188,  255,  259  ;  II. 

438 

V.  Nichols  II.  654,  657,  658 

Elliot's  Case  I.  29  ;  II   586 

Elliot  V.  Abbot  I.  173  ;  II.  445,  448 

V.  Cooper  I.  23 

v.  Edwards  II.  168 

V.  Heath  II.  605 

Elliott  V.  Brown  II.  641,  651 

V.  Connell  II.  524 

V.  Dudley  I.  124 

V.  Giese  II.  128 

V.  Mills  II.  663 

r.  White  I.  646 

Ellis  ».  Brown  11.120,132,519 

r.  Commercial  Bank         I.  458,  478, 

640,  641  ;  II.  .339 

V.  Ellis  I.  26 

V.  Galindo  I.  324,  325  ;  II.  239 


Ellis  r.  Hamilton  II.  502 

V.  Mason  I.  24 

V.  Ohio  Life,  &c.  Co.  I.  321  ;  II. 

589,  598 

V.  Warnes  II  419 

V.  Wheeler  I.  33  ;  II.  59,  66 

V.  Wild         II.  37,  41,  102,  186,  589, 

600,  602 

Ellison  V.  Collingridge  I   24,  63 

Ellmaker  )•.  Franklin  F.  Ins.  Co.     II.  606 

Ellsworth  V.  Brewer    II.  94,  209,  455,  456 

Elminger  ».  Drew  I,  209 

Elsam  V.  Denny  II.  456 

Elting  V.  Brinkerhoff        I.  338,  340,  378  ; 

LI.  57,  58,  72,  74 

Elton  ».  Johnson  11.126 

Elwood  V.  Deifendorf         I.  235,  240  ;  II. 

152,  154,  159,  202,  218 

Ely  V.  Bibb  II.  I4l 

V.  Ely  II.  578,  580 

V.  Kilijorn  II.  511,  525 

V.  Withcrspoon  II.  392 

Emancipation,  The  II.  173 

Emanuel  v.  Atwood  II.  603 

Embhn  v.  Dartnell  I.  308,  427 

Embree  v.  Hanna  II.  387,  390 

Emerson  v.  Crocker  I.  264,  377,  381 

V.  Cutts      II.  209,  455,  456,  485 

V.  Harmon  I.  125 

V.  Miller  II.  654 

V.  Murray  II.  545,  577 

V.  Partridge  II.  333,  387 

V.  Providence  Hat  Manuf.  Co. 

I.  93,99,  105,  117,  167;  11.  152 

V.  Thompson  II.  659 

Emery  v.  Day  II.  639,  648,  657 

i;.  Tichout  II.  228 

V.  Vinall  I.  41 

Emly,  Ex  parte  I.  130 

V.  Lye         I.  130;  II.  41,  105,  184, 

185,  601 

Emmett  r.  Tottenham  II.  443 

Emmons  v.  Hay  ward  II.  641 

V.  Overton  II.  511 

Emmott  ».  Kearns  II.  119,  126,  130 

Emory  v.  Grcenough  II.  325 

English  V.  Darlcy        I.  237  ;  II.  234,  239, 

240,  242,  243,  245,  249,  250 

V.  Trustees  Indiana.  <^c    fTni- 

vcrsity  I.  71 


INDEX   TO   CASES   CITED. 


xlix 


English  V.  Wall  I.  537,  545,  581 

Ensminger  v.  Marvin  I.  1 28 

Enston  v.  Friday  II.  309 

Enthovcn  v.  Hoyle  I.  33 

Erie  Bank  v.  Gibson  I.  237,  238 

Erwin  v.  Adams  I.  311,  438 

V.  Downs  I.  277,  362  ;  II.  26 

V.  Saunders  II.  512,  529 

Esdaile  v.  La  Nauze    I.  107  ;  II.  212,  285 

V.  Sowcrby  I.  446,  528,  629 

Eskridge  v.  M'Clure  II.  167,  168 

Esiava  v.  Lepretre  II.  425 

Esselstyn  v.  Weeks  II.  648 

Essex  Co.  V.  Edmands  II.  122 

Estabrook  v.  Smith  II.  440,  448 

Estes  V.  Blake  II.  637 

y.  Kyle  11.381,383,384 

Etheridge  v.  Binney  II.  393 

Etter  V.  Finn  II.  646 

Etting  V.  Commercial  Bank  II.  592 

V.  Schuylkill  Bank         I.  476,  514, 

515,  517 

Eubank  v.  Boston  II.  167 

Eure  V.  Eure  II.  446 

Evans's  Case  II.  413 

Evans  r.  Bell  II.  524 

V.  Bremridge  I.  232 

V.  Bridges  I.  350,  351 

V.  Carey  II.  649 

V.  Clover  II.  608 

V.  Cramiington  II.  4,  451 

V.  Davics  II.  656 

V.  Drunimond  I.  135;  II.  199 

r.  Gee  1.351 

V.  Gordon  I.  643 

V.  Gray  II.  338,  375 

V.  Hardeman  II.  641 

V.  Keeland  I.  236 

V.  Kymer  II.  27,  265,  435 

v.  Negley  II.  406 

v.  Norris  I.  557 

T.  Prosser  II.  617 

t).  St.  John  I.  435 

V.  Smith  I.  256,  662 

V.  State  of  Ohio  II.  586 

V.  Underwood  I.  40 

V.  Whyle  II.  41,  184,  185 

Everard  v.  Watson  I.  468,  469,  470 

Everett  v.  Collins  II.  85,  87 

V.  United  States  I.  173 

Vol.  l.—D  e 


II.  359 
I.  242 

I.  76 
.  361 

II.  164 
II.  .535 

II.  9 

I.  109  ; 

II.  478 
I.  4 HO 

I.  307,  423 

I.  239 

I.  237  ;  II.  247 


Evcrett  v.  Vendryes 
Everly  v.  Rice 
Everson  v.  Carpenter 
Ewart  V.  Coulthard 
Ewer  V.  Clifton 
V.  Myrick 
Ewing  V.  Sills 
Exchange  Bank  v.  Monteath 

Exchange,  «&.c.  Co.  v.  Boyce 
Exon  V.  Russell 
Eyre  v.  Bartrop 
V.  Everett 


F. 


Fabens  v.  Mercantile  Bank  I.  480 

Fackler  v.  Fackler  II.  635 

Fahnestock  v.  Schoyer  II.  448 

Fairr.  M'lver  11.611 

Fairbanks  v.  Dawson  II.  654,  655 

Fairchild  v.  Holly     II.  226,  228,  229,  230 

V.  Ogdcnsburgh,  &c.  R.  Co. 

I.  309 

V.  0.  C.  &  R.  R.  Co.  I.  288 

Fairfield  v.  Adams       I.  170 ;  II.  439,  451 
Fairlce  v.  Herring  I.  285,  286,  293 

Fairley  v.  Roch  I.  317 

Faith  V.  Richmond  I.  135 

Fake  v.  Eddy  II.  375,  397 

Fales  V.  Russell  II.  298,  299,  302 

Fallowes  v.  Taylor  I.  215 

Fall  River  Union  Bank  v.  Willard 

I.  337,  348,  372 
Falmouth  v.  Roberts  II.  577 

Fancourt  v.  Bull  II.  265,  266,  293 

V.  Thorne       I.  44  ;  II.  147,  542 

Fannin  v,  Anderson  II.  636 

Fanning  r.  Consequa  II.  333,  376 

V.  Dunham  II.  416 

Fanshawc  t.  Peet  II.  474 

Fant  V.  Cathcart  I.  73 

Faribault  v.  Ely  II.  491 

Farley  ».  Cleveland  II.  132 

Farmer  v.  Rand     I.  513,  514  ;  II.  556,  565 

V.  Russell  II.  62 

V.  Sewall  II.  410,  428 


INDEX   TO   CASES   CITED. 


Farmers',  &c.  Bank  v.  Battle    I.  480,  484, 

Favenc  v.  Bennett 

n. 

209,  227 

495,  497, 498 

Faxveil  v.  Heelis 

II.  167 

Bank  v.  Brainerd       I.  659,  660 

Fay  V.  Bradley 

II.  425 

&  Mechanics'  Bank  of  Kent 

V.  Goulding 

II.  474 

Co.  T.  Butchers  and  Dro- 

Fayle v.  Bird 

I. 

308, 

309, 425 

vers'  Bank       I.  273  ;  n.  75, 

Fear  v.  Dunlap 

IL  121 

76,  478 

V.  Jones 

11.  443 

&c.  Bank  v.  Butler    I.  480,  482, 

Fearn  v.  Filica 

I. 

119 

;  II.  487 

483 

V.  Lewis 

II.  651 

V.  Catlin           II.  498 

Fearon  v.  Bowers 

IL  178 

Bank  v.  Clarke                 11.  652 

Feathcrston  v.  Wilson 

IL  505 

i-.Duvall  1.367,370,373, 

Fcemster  v.  Ringo 

II.  96 

511,  512;  II.  461,  492, 

Feise  v.  Wray 

II. 

177,  178 

495 

Felch  V.  Bugbee 

II.  364 

c.  Gilson                  n.  638 

Fellows  p.  Carpenter 

IL  534 

&c.  Bank  v.  Harris            I.  49+ 

V.  Kress 

IL  221 

&  Mechanics'  Bank  v.  Ker- 

V.  Prentiss 

I.  240 

cheval                            II.  137 

Felton  V.  Dickinson 

I.  29 

7  ;  IL  62 

Bank  r.  Reynolds    1.231,232; 

Fenby  v.  Pritchard 

I.  224 

n.  101,  246,  297,  301,  302, 

Fenn  v.  Hamson           ] 

.  11/ 

,  US 

;  IL  15, 

304,  312,  313 

41, 

105, 

184,  601 

&c.  Bank  v.  Rathbone      I.  229, 

Fenner  v.  Meares 

11.62 

326 

Fcnouille  v.  Hamilton 

I.  224 

&  Mechanics'  Bank  v.  Troy 

Fenton  v.  Goundry 

I. 

305,  306 

City  Bank             I.  169,  173 

V.  White 

L  68 

Bank  v.  Vanraeter    I.  537,  554, 

Fentum  v.  Pocock      I. 

229, 

325, 

326  ;  IL 

556,  560,  648 

27, 

242, 

249, 

250,  515 

V.  Waples          I.  585,  587 

Fenwick,  Ex  parte 

II.  629 

of  Lancaster  v.  White- 

V.  Sears         I. 

554 

;  n. 

326,  369 

hill       11.476,496,497 

Ferdon  v.  Jones 

I. 

221, 

224,  261 

Farnham  v.  Ingham                           II.  522 

Fereday  v.  Ilordern 

II.  422 

Farns worth  v.  Allen                           I.  418 

V.  Wightwick 

IL413 

V.  Drake                             I.  32 

Fergus  v.  The  State 

IL  588 

V.  Sharp                         II.  577 

Ferguson  v.  Clifford 

IL  327 

Farnum  v.  Fowle                        I.  446,  528 

V.  Crowson 

IL  645 

Farquhar  v.  Southey     I.  324,  325  ;  11.559 

T.  Flower 

II 

319,342 

Farr  v.  Stevens                  II.  153,  181,  182 

V.  Ilill 

II.  529 

V.  Ward                             II.  399,  482 

V.  King 

IL  440 

Farrar  ».  Gilman                                 I.  173 

V.  Lothrop 

11.615 

Farrics  r.  Elder                                 11.315 

V.  Sprang 

IL413 

Farrington  v.  Brown                  I.  601,  621 

Fernandey  v.  Glynn 

I 

284 

328 ; IL 

V.  Frankfort  Bank            I.  222 

85, 

570,  593 

V.  Gallaway                       I.  235 

Fernandez  v.  Lewis 

I.  338, 

340,  345 

Fanvell  v.  Ililliard                             II.  458 

Fernon  v.  Farmer 

II.  45 

V.  Kcnnett                                 I.  47 

Ferrall  r.  Shaen 

IL 

410, 

414,  417 

V.  Tyler                               II.  439 

Ferrers  v.  Shirley 

11. 

475,  476 

Fash  V.  Ross                                         I.  99 

Ferris  v.  Bond 

1.37 

Fassct  V.  Brown                                  II.  475 

V.  Henderson 

il.  640 

Fathcrcc  v.  Fletcher                          II.  634 

V.  Ludlow 

11.  ,^35 

Fauntlcroy's  Case                             II.  210 

V.  Saxton 

T. 

39 'i,  497 

INDEX    TO    CASES    CITED. 


li 


Ferry  v.  Ferry 
Ferson  v.  Sanjjcr 
Fiddy  v.  Campbell 
Field  V.  Carr 

V.  Holland 


11.  424,  42.5 

II.  629 

XL  245 

II.  208,  211,  231 

11.  223,  227,  228 


V.  Nickerson    I.  264,  270,  375,  376, 

377,  379,  519;  II.  516 

Fieldhouse  v.  Croft  II.  92 

Fields  V.  Mallett  I.  408 

Fink  V.  Cox  I.  178 

V.  Fink  II.  55 

V.  Hake  n.  615 

Finn  v.  Gustin  II.  466 

Finnell  v.  Nesbit  11.  618 

Finney  v.  Brant  II.  647 

V.  Shirley  I.  25 

V.  Turner  II.  577 

F.  &  M.  Bank  of  Memphis  r.White     II.  95 

First  Congregational  Soc.  in  Lyme  v. 

Miller  II.  652,  656 

Mass.  Turnpike  Co.  v.  Field     II.  640 

Firth  V.  Thrush  I.  500,  514,  527 

Fischer  v.  Hess  II.  649 

Fish  V.  Howland  II.  167 

V.  Jackman  I.  480 

Fisher  v.  Beasley  11.  4 1 7,  4 1 8 

V.  Beckwith  I.  282,  285,  287 

V.  Bidwell  II.  395,  402 

V.  Bradford  II.  442 

V.  Carroll  II.  297,  298, 302,305,  306 

V.  Ellis  I.  202  ;  II.  449 

V.  Evans  I.  442,  492,  493 

r.  Johnson  II.  1 67 

V.  Lane  11.  387,  390 

V.  Leslie  I.  25 

V.  Mershon     IL  293,  294,  297,  310 

V.  Otis  II.  414 

V.  Pomfret  I.  14 

V.  Rieman  II.  602 

V.  State  Bank  I.  385,  483 

Fishmongers*  Company  v.  Robertson 

L  163 

Fisk  V.  Cushman  I.  86 

v.  Holden  11.  623 

V.  Wilson  II.  629 

Fiske  V.  Fostei  I.  651 ;  II.  363 

Fitch  TJ.  Bogue  U.  291,  297,  305,  310 

V.  Chapman  11.  472 

r.  Jones     L  189,  262 ;  IL  438,  474, 

493,  494,  577 


Fitch  V.  Lawton  I.  170 

r.  Redding  L  552,  603  ;  U.  71 

V.  Sutton  L245;  11.217 

Fitler  v.  Beckley  I.  309 

V.  Morris  I.  491 

Fitzgerald  v.  Stewart  I.  336 

V.  Trant  II.  238 

V.  Williams  L  550,  551 

Fitzhugh  V.  Runyon  II.  515 

Flack  V.  Green  L  395,  482 

Flcckner  v.  U.  S.  Bank    L  173  ;  II.  7,  419 

Fleming  v.  Brook  IL  89,  92,  188 

V.  Burge  I.  25 

r.  Fulton  L  395,  401,473 

V.  Gilbert  II.  529 

V.  M'Clure  L  485,  607,  634 

V.  Nail  L  47 

V.  Potter  I.  309 

V.  Simpson  L  205 

Flemming  v.  Denny  I.  273  ;  11.  74 

V.  M'Clain  IL  83 

V.  Mulligan  IL  417,  419, 

420,  427 

V.  Prescott  I.  125 

Fletcher  v.  Blodgett    I.  434 ;  II.  149,  540, 

578 

V.  Braddyll  IL  491 

V.  Dana  IL  440 

V.  Dysart  L  101 

V.  Froggatt  I.  596,  597 

V.  Gushee  L  188 

V.  Jackson  IL  253 

V.  Manning  II.  83 

Flight  V.  Brown  II.  291,  309 

K.Maclean  L  18,  19,  20 

Flint  i;.  Day  IL  121,  124,  250 

?;.  Pattee  L  179;  11.55 

v.  Rogers     L  411,  414,  419  ;  IL  462 

Florence  v.  Drayson  II.  394,  397,  398 

V.  Jenings  11.  394,  398 

Flower,  Succession  of  II.  646 

Floyd  V.  Day  IL  94 

Floyer  v.  Edwards  11.  406,  414,  418 

Flynt  V.  Hatchett  II.  634 

Foard  v.  Johnson  I.  492 

V.  Womack  L  464,  538,  542 

Foden  v.  Sharp     L  229,  309,  435 ;  IL  341, 

376 
Fogarties  v.  State  Bank  I.  62,  63 

Fogg  V.  Middlesex  Mut.  F.  Ins.  Co.     I.  51 


lii 


INDEX   TO   CASES   CITED. 


Fogg  I    Sawyer         II.  101,  103,  105,  190, 

192,  193,  ig'^l 

V  Vi.'gip.  I.  98 

Foland  v.  Boyd  I.  525 

Folger  V.  Chase         I.  171,  172,  436,  437  ; 

II.  18,  569 

FoUain  v.  Dupre  I.  497,  498,  505 

Follett  r.  Buyer  11.614 

V.  Eastman  II.  532 

V.  Steele  11.  153 

Folliott  r.  Ogden      11.  318,  355,  358,  368 

Folsom  V.  Mussey  I.  21 2 

Foltzr.  Mey  11.431 

Fontaine  v.  Gunter  II.  577 

Foot  V.  Sabin  I.  125,  127,  140 

Foote  V.  Bragg  II.  556 

V.  Brown  II.  137 

Forbes  v.  Smith  II.  634 

Force  v.  Craig  I.  26 

Ford  V.  Adams  II.  50 

V.  Atwater  II.  207 

V.  Babcock  11.  635,  636 

V.  Beech  11.  237,  533 

V.  Clements  II.  637 

r.  Ford  II.  556 

17.  Hopkins  IT.  110,  113 

T.  Phillips  I.  72,  76 

Fordham  v.  Wallis  II.  657,  660 

Foreman  v.  Wikoff  I.  497 

Forkner  v.  Dinwiddie  11.  610,  611 

Forman  v.  Jacob  II.  214,  474 

r.  Wright  1.212 

Foniey  v  Benedict  II.  659 

Forrest  v.  Ehvcs  II.  409 

Forster  r.  Clements  II.  212,  285 

V.  Fuller  I.  90,  161 

Forsyth  v.  Ripley  II.  628,  633 

Fort  V.  Branson  II.  447 

V.  Cortes  I.  311 

V.  Meacher  II.  577 

Fortner  v.  Parham  I.  499,  511 

Fortune  v.  Hayes  II.  657 

Foster  v.  Andrews  I.  124,  128 

t;.  Dawber  II.  235 

V.  Hoyt  II.  608 

w.  Jolly  I.  194;  IT.  522,  523 

T.  McDonald  1.482,483,484,514 

V.  Mnckny  II.  208,  304,  307 

V.  Paulk  I.  273-,  II   71,  74,  84 

r.  Pearson  I.  119;  II.  187,272,273 


Foster  v.  Shattuck  I.  32 ,  II.  53,  448,  592 

V.  Sineath  I.  483 

v.  Stafford  II.  502 

V.  Trustees  of  AthenEcum    II.  167, 

168 

Fotheringham  r.  Price  I.  554,  601 

Fouke  V.  Fleming  II.  334 

Foute  V.  Bacon  11.  649,  657 

Fowke  V.  Bowie  II.  230 

Fowler  v.  Brantly  II.  279 

V.  Brooks  I.  235,  242 ;  II.  239,  533 


r.  Bush 
V.  Garret 
V.  Hendon 
V.  Lawson 
V.  Ludwig 
r.  Shearer 
V.  "Willis 
Fox  r.  Drake 
V.  Fisk 
V.  Frith 
V.  Reil 
V.  Whitney 
Frail  v.  Ellis 
Fralick  i'.  Norton 
France  ».  Lucy 
Francia  v.  Del  Banco 

V.  Joseph 
Francis'  Case 
Francis  v.  Nash 

t'.  Rucker 
Frank  v.  Townscnd 
Franklin  v.  Beatty 
V.  Low 
V.  March 
V.  Vandcrpool 


II.  151 

II.  420 

L  513 

II.  620 

IL  86,  151,  152,  153 

1.210 

II.  443 

L  98 

II.  647 

L  137 

IL  477 

n.  468,  470 

IL  168 

L45 

IL  498 

L  160,  182 

I.  222 

IL  585 

IL  92 

L  650,  654 ;  IL  373 

L  410 

I.  79 

IL  315 

I.  25 

L  537,  552  ; 

IL  59,  71,  73 

1.  448,  489 

IL  616 

11.67 

467,  469,  470 

I.  235 

II.  224 

II.  594 

IL  228 


V.  Vcrbois 

Bank  v.  Cooper 

V.  Freeman 

V.  Pratt  II. 

Fraser  v.  McConnell 

Frazcr  t.  Bunn 

Frazier  v.  Harvie 

V.  Ilyland 

V.  Warfield    II.  334,  336,  341,  .342 

Frcaklcy  v.  Fox  I.  162  ;  II.  440 

Frederick  v.  Cotton  I.  14 

Free  V.  Hawkins  I.  321,  557,584  ;  IT  482, 

484,  504,  53.^,  589,  590 


INDEX   TO   CASES   CITED. 


liii 


Freeman  v.  Boynton  I.  230,  358,  367,  456, 
597,601,607  ;  11.262,286,298,302 


V.  Biittin 

II. 

407,  426,  428, 
431,469 

V.  Kenncll 

11.474 

V.  Perot 

I.  315,  318 

V.  Perry 

II.  46,  418 

V.  Ross        I. 

381, 

407  ;  II.  478 

Freeman's  Bank  v.  Pei 

kins 

I.  57,  643 

V.  Kolliiis 

I.  236,  241  ; 

II. 

242,  245,  .533 

Freestone  v.  Butcher 

II.  210 

Freligh  v.  Piatt 

I.  200,  204 

French  v.  Bank  of  Columbia     I.  536,  541, 

548,  555,  556 

,557 

,  631  ;  II.  494 

V.  Grindle 

II.  410,  428 

V.  Price 

n. 

151,  202,  218 

Frere,  Ex  parte 

11.28 

Frevall  v.  Fitch 

1.26 

Frey  v.  Kirk 

II.  360 

Friend  v.  Beebe 

II.  519 

V.  Harrison 

1.214 

Friley  v.  White 

II.  634 

Frink  v.  Green 

I.  248 

Frisbee  v.  Hoffnagle 

I.  210 

Frisbie  v.  Larned 

II.   159,  162 

Fritz  V.  Thomas 

II.  659 

FuUcrton  v.  Rundlett 

V.  Sturges  I.  110 

Fulton  V.  Matthews  II. 

V.  Poole 
Bank  v.  Beach 

V.  Phoenix  Bank 

II.  107, 
Fulton  Co.  V.  Wright 
Fulwiler  v.  Jackson 
Funes  v.  U.  S.  Bank 
Furloiige  v.  Rucker 
Furman  v.  Haskin  I.  264, 

Furniss  v.  Gilchrist 
Furze  v.  Shanvood 


Frontier  Bank  v.  Morse     II.  100,  103, 105, 

192,  193,  197 

Frost  V.  Everett  II.  526,  529 

V.  Frost  II.  645 

V.  Wood  I,  99,  107 

Fry  0.  Evans  II.  611 

V.  Hill  I.  267,  268,  338,  339,  344 


V.  Rousseau 
Frye  v.  Barker    I. 


237 


Fryer  v.  Brown 
V.  Roe 

Fugit  V.  Ewing 

Fulford  V.  Johnson 

Fuller's  Case 

Fuller  V.  Hooper 
V.  Loring 
V,  McDonald 

V.  Parrish 
V.  Smith 
f  uUerton  v.  Bank  of  U.  S. 


I.  47 
II.  241,242,245, 
414,  656,  657 
II.  236 
11.642 
II.  616 
II.  160,  181 
II.  413 

I.  95,  102,  502,  524 
I.  237,  242 

[.  576,  585  ;  II.  25, 

498,  516,  520 

II.  616 

II.  37,  38,  186,  600 


Fussell  V.  Daniel 
Fussil  V.  Brookes 
FydcU  V.  Clark 


II.  516 

;  II.  574 

245,  533 

II.  62 

II.  416 

I.  222  ; 
283,  298 

I.  374 

II.  428 
I.  311 

II.  399 
269,  378 

II.  604 
469,  471, 
;  II.  489 
401,  410 
II.  414 
158,  184 


I.  436,  437, 
510 


I.  132,  468, 

507 
II. 

II.  41,   156, 


G. 


Gable  v.  Parry  II.  617 

Gage  V.  Kendall  II.  436,  443 

Galm  V.  Niemcewicz     I.  235,  239  ;  II.  247, 

533 
Gaillard  v.  Ball  II.  336,  376 

Gaines  v.  Salmon  II.  618 

Gaither  v.  Farmers  &  Mechanics' 


Bank 
Gale  V.  Capern 

V.  Grannis 

V.  Kemper 

V.  Luttrell 

V.  Walsh 
Gales  V.  Holland 
Gallagher  v.  Roberts     I.  370  : 
Gallery  v.  Prindle 
Galloway  v.  Legan 
Gallway  v.  Mathcw  (10  East) 


I.  431 

II.  617,  661 

II.  406,  434 

I.  435,  497 

II.  611 

I.  533,  642 

II.  625 

11.154,  181 

I.  303 

II.  406 

I.  129,  130, 

133 

Galoupeau  v.  Ketchum  II.  160 

Galpin  v.  Hard  I.  442,  449,  450,  451 

Gal  way  v.  Matthew  (1  Camp.)        I.  247  ; 

II.  477 

II.  138 

I.  129 

1.46 

II.  414 


Gamage  v.  Hutchins 
Gamble  v.  Grimes 
V.  Hatton 
Gambril  v.  Rose 


liv 


INDEX   TO   CASES   CITED. 


Games  i   Manning 

L  310 

Geiger  v.  Cook 

L  179,  206 

Gammon  v.  Everett 

L  310,  431 

Geill  V.  Jeremy 

I.  509 

V.  SchmoU 

L  301,  307 

General  Smith,  The 

IL  170,  175 

Gannett  v.  Cunningham 

I.  144 

George  v.  Harris 

I.  203 

Gano  V.  Samue' 

L  140 

V.  Stockton 

I.  204 

Gansevoort  v.  "Williams 

I. 

124,  126,  141, 

V.  Surrey 

L23;  II.  16,480 

142  ;  IL  478 

Geortner  v.  Trustees,  &c.                    I.  146 

Gantt  V.  Mackenzie 

n.  393,  396,  399 

Geralopulo  v.  Wieler 

I.  320,  645 

Gardener  v.  Parker 

IL54 

Germain  v.  Steam  Tug 

Indiana       II.  170 

Gardiner  v.  Jones 

I.  596 

Gerrish  v.  Sweetser 

II.  479 

Gardner  v.  Baillie 

L  106 

Gervis  v.  Baird 

II.  475 

V.  Bank  of  Tennessee         I.  639, 

Getchell  v.  Heald 

II.  656 

642,  64.T 

Gibb  V.  Mather 

L  307,  308,  426 

V.  Fenee 

I.  238 

Gibbon  v.  Coggon      I. 

614,  647,  648;  IL 

V.  riagg 

n.  414,418 

497 

V.  Gager 

I.  223 

V.  Featherstonhaugh             II.  220 

v.  Gorham  11.  154, 

157,  161,  218 

V.  Scott 

II.  529 

V.  Lee's  Bank 

U.  326,  363 

Gibbs  V.  Cannon          ] 

.529;  IL  137,139 

V.  M'Mahon 

II.  654 

V.  Chisolm 

II.  425 

V.  Maxey 

I.  196,  215 

V.  Cunningham 

II.  607 

V.  Walsh 

IL  557,  582 

V.  Fremont       I. 

651  ;  IL  371   372, 

V.  Watson 

I.  240 

395,  396,  399 

Garforth  v.  Bradley 

IL  448 

V.  Howard 

IL  375 

Garland  v.  Milling 

II.  645 

V.  Merrill 

L67 

V.  Salem  Bank 

L  246,  609 

Gibson  v.  Conner 

I.  223 

Garlock  v.  Geortner 

II. 

265,  292,  293 

V.  Cooke 

L  332,  333,  334  ; 

Garner  v.  The  State 

II.  96 

IL46 

Gamett  v.  Macon 

I.  250 

V.  Dickie 

L  214 

V.  Woodcock 

L  419,  641 

V.  Gibson 

II.  532 

Garrard  v.  Cottrell 

IL  458,  487 

V.  Grosvenor 

II.  650 

V.  Woolner 

11.217 

V.  Hunter 

L  32  ;  II.  592 

Garrells  v.  Alexander 

II.  475 

V.  Irby 

L  29;  II.  528 

Garrett  v.  Garrett 

11.638 

V.  Minet    I.  8,  33,  331  ;  II.  4,  212, 

V.  JuU 

I.  234 

585 

Garrison  v.  Combs 

L  99 

V.  Peebles 

IL  221 

Garson  v.  Green 

II.  167,  169 

i;.  Powell 

L  18 

Garth  v.  Ilobards 

II.  635 

V.  Renne 

IL  528 

Gascoyne  »'.  Smith 

I 

208;  II.  643 

V.  Stearns 

11.412 

Gass  f.  Stinson 

II.  230 

Gicnar  v.  Meyer 

11.  319,  366 

Gaters  v.  Madeley    I.  87 

88 

;  11.446,447 

Gilford,  E.\  parte 

II.  237 

Gates  V.  Parker 

1.  299 

V.  Allen 

L  241  ;  IL  245 

Gaul  V.  Willis 

II. 

427,  428,  469 

Gilbert  r.  Dennis       I. 

230,  371,  436,  450, 

Gaunt  V.  Taylor 

11.82 

467, 

470,471,  472,  477 

Gautier  v.  Franklin 

II.  628 

Gilchrist  i'.  Ward 

II.  222 

Gautt  V.  Gautt 

II   375 

Giles  V.  Ackles 

I.  198 

Gay  V.  Lander 

L  17,  20 

V.  Bourne 

L  41,49,  386,  427 

Gazoway  v.  Moore 

II.  .506 

Gill  i\  Cubitt       L  258 

II.  270,  271,  273, 

Ga//,am  v.  Armstrong  1.314 

317,318,320 

275,  276,  277 

Geary  v.  Physic 

L  21  ;  II.  16 

Gillespie  v.  Cammack 

L   537,  544,  .545, 

Geer  v.  Putnam 

L  213 

557 

INDEX   TO    CASES   CITED. 


Iv 


Gillespie  v.  Hannahan  I.  371,  450,  451,452 

453 

V.  Rosekrants  II.  648 

Gillet  y.  Fairchild  I.  155 

Gillctt  i;.  Averill  I.  436,  437 

V.  Sweat  II.  559,  577,  578 

i^  Whitmarsh  II.  503 

Gillighaii  V.  Boardman     II.  125,  128,  137, 

142 
Gillingham  v.  Gillingharn  II.  628,  661 
Gillispie  V.  Fort  Wayne  &  Southern 

R.  R.  Co.  II.  438 

Gillson's  Case  II.  583 

Gilly  V.  Springer  I.  311 

Gilman  v.  Brown  II.  167,  168 

T.  Cutts  II.  633,  634,  635 

v.  Ilorseley  I.  156  ;  II.  446 

V.  Moore  II.  507 

V.  Peck         II.  103,  105,  107,  15.3, 

193,  194 

Gilmore  v.  Bussey         "  II.  152 

V.  Carr  II.  458 

V.  Hague  II.  486 

Succession  of,  v.  Bayly     II.  615 

Gilpin  V.  Enderby  II.  422,  423 

Gilson  V.  Gilson  II.  532 

Gindrat  v.  Mechanics'  Bank      I.  483,  514 

Girard  Bank  v.  Comly  II.  522 

Girarday  v.  Richardson  I.  214 

Gist  V.  Lybrand  I.  450,  451,  483,  498 

Givins  v.  Western  Bank  of  Ga.        II.  327 

Glascock  V.  Rand  I.  183 

Glasfurd  v.  Laing  11.  412 

Glasgow  V.  Copeland  I.  337 

JJ.  Pratte      1.311,432,477,503, 

505 

V.  Stevenson  II.  162 

V.  Switzer  II.  443 

Glasscock  v.  Bank  of  Mo.  I.  498,  503,  504 

V.  Smith  1.  146 

Glazebrook  c.  Ragland  11.615 

Gleason  r.  Moen  11.611 

Glen  Cove  Mat.  Ins.  Co.  v.  Harrold 

II.  129,  648 

Glendinning,  Ex  parte      I.  229,  241,  326 ; 

II.  248,  249,  250 

Glenn  v.  Noble  I.  273  ;  II.  59 

V.  Smith  II.  161,  308 

V.  Thistle    I.  483,  596,  601,  604,  620 

Glcnnie  v.  Imri  I.  211 


Glossop  V.  Jacob  I.  282  ;  II.  488 

Gloucester  Bank  v.  Salem  Bank      II.  99, 

101,  190,  195.  598 

V.  Worcester  II.  233 

Glover  v.  Gracser  II.  394 

V.  Thompson        II.  295,  296,  486 

Glyn».  Baker     II.  33,  111,  112,  115,  116 

Glynn  v.  Bank  of  England      II.  287,  296. 

297 

Goad  V.  Hart  1.  109 

Gobley.  Gale  II.  176 

Godard  v.  Benjamin  II.  458 

Godbold  V.  Lambert  II.  640 

Goddard's  Case  I.  386 

Goddard  v.  Co.\  II.  228 

V.  Cunningham  II.  456 

V.  Cutts    I.  51  ;  II.  502,  509,  525 

V.  Hill  II.  524 

V.  Hodges  II.  226 

V.  Ingram  II.  658 

V.  Lyman  II.  5,  440 

V.  Merchants'  Bank     II.  38,  80, 

284,  590 

V.  Pratt  I.  168 

Goddin  v.  Shipley         I.  397,  399  ;  IL  32C 

Godin  V.  Bank  of  Commonwealth      II.  81 

Godley  v.  Godloe  I.  493 

Gogcl  V.  Jacoby  II.  605 

Goggerley  v.  Cuthbert  IL  293,  435 

Gold  V.  Phillips  II.  132 

Colder  v.  Foss  II.  437,  454,  455 

Gold-Hunter,  The  II.  170 

Golding  V.  Grace  II.  458 

Goldsmid  v.  Lewis  Co.  Bank  I.  222  ; 

IL  275 
Goldsmith  v.  Bland  1.  488 

Goldstone  v.  Tovey  I.  83  ;  II.  489 

Golightly  V.  Reynolds  II.  Ill,  267 

Gompertz  v.  Bartlett  II.  39,  187,  592 

Gonder  v.  Estabrook  II.  634 

Gooch  V.  Bryant  II.  550,  577,  580 

Good  V.  Cheesman  IL  217 

Goodacre  v.  Breame  II.  465 

Goodall  V.  Dollcy      I.  337,  533,  534,  536, 

601 

17.  Polhill  L317 

V.  Ray  II.  604 

V.  Tucker  II.  627 

Goode  V.  Harrison  I  77 

Gooden  v.  Amoskeag  F.  Ins.  Co.    II.  641 


IvJ 


mDEX   TO   CASES    CITED. 


Goodenow  v.  Diiffield 

z.  Tyler 
Goodered  v.  Armour 
Gooding  V.  Morgan 
Goodloe  V.  Godley 
V.  Taylor 
Goodman  v.  Eastman 
V.  GrifBn 


II.  92 

II.  150,  151 

II.  292 

II.  152 

I.  419,  435,  436 

I.  40 

II.  549,  565 

I.  238 


V.  Harvey    I.  258 ;  II.  187,  272, 

273,  277,437,  438 

T.  Munks  II.  383,  384 

r.  Norton  I.  510 

V.  Simonds  (19  Misso.)    I.  115, 

224 

V.  Simonds  (20  How.)      I.  223, 

255,  259  ;  II.  278,  279 

Goodrich's  Case  II.  210 

Goodrich  v.  Barney  II.  161 

V.  Buzzell  II.  416,  420 

T.  Gordon  I.  294 

V.  Stanley  II.  46 

Goodridge  r.  Koss  I.  72 

Goodsell  V.  Myers  I.  67,  73,  76 

Goodtitle  v.  Braham  II.  476 

Goodwin  V.  Coates  I.  329  ;  II.  183 

V.  Cremer  II.  217,  219 

V.  Hazzard  II.  83,  393 

r.  Jones  II.  373,  374 

V.  McGehec  11.  620 

Goodwyn  v.  Goodwyn  II.  654 

Goostrey  v.  Mead  I.  644 

Gordon  v.  Church  II.  608 

V.  Drnry  II.  4C 

V.  Phelps  II.  372 

V.  Pitt  II.  456 

V.  Price       II.  153,  154,  157,  160, 

204 

V.  Sutherland  II.  561 

Goro?;.  Buck  11.303 

T.  Gibson         I.  149,  151  ;  II.  fi,  403 

Gorgcrat  v.  McCarty  I.  358  ;  II.  209 

Go'gier  z.  Mieville  II.  33,  36,  114 

Gorliani  v.  Carroll  II  470 

Goshen,  &c.  Turnpike  Co.  v.  Hurtiii 

1.41,228,408 

Goss  V.  Nelson  I.  39 

r.  Nugent  II.  526 

Goudy  V.  Gillam  IT.  657 

Gough  ».  Davieg  11.201,229 

c.  Fiiidon  II.  5 


Gough  V.  Staats  I.  271  ;  U.  73 

Gould  z.  Coombs  II.  561,  568,  573 

z.  Fuller  II.  253 

z.  Norfolk  Lead  Co.  I.  117 

V.  Kobson      II.  239,  240,  242,  245, 
246,  247 
V.  Segec  I.  115,  254,  280 

Goulding,  Ex  parte  I.  125 

Goupy  z.  Harden       I.  103,  268,  338,  340. 
342,  344  ;  II.  24 
Gove  z.  Vining  I.  582,  588 

Governor  z.  Carter  II.  92 

Gowan  z.  Forster  II.  654,  655 

z.  Jackson      I.  264,  345,  502,  523, 
524 
Gower  z.  Moore  I.  364,  447,  525,  530 

Grace  v.  Smith  II.  423 

Graeff  v.  Hitchman  I.  131 

Grafton,  The  11.170 

Grafton  Bank  z.  Doe  II.  642 

r.  Flanders  I.  122 

V.  Hunt  U.  193 

z.  Kent         I.  235;  II.  515 
V.  Moore      I.  640,  642,  643 
z.  Woodward  I.  235  ;  II.  529 
Gragg  z.  Brown  I.  290 

z.  Frye  II.  620 

Graliam  v.  Adams  I.  47 

V.  Cox  II.  84 

TJ.  Keys  11.649,651,656 

V.  Partridge  II.  619 

z.  Sangston    I.  436,  470,  471,  637 
Grand  Bank  z.  Blanchard  I.  369,  509 

Grand  Gulf  Bank  v.  Archer  II.  433 

z.  Wood  II.  52 

&c.  Co.  z.  Barnes  I.  498, 

499,  514 
Grandin  z.  Le  Boy  I.  22G  ;  II.  28 

Granite  Bank  z.  Aycrs      I.  362,  423,  446, 
448,  460,  488,  489,  528 
r.  Ellis  II.  445 

Railway  Co.  v.  Bacon  II.  544 

Grant  v.  Ashley  II.  649,  657 

V.  Austen  I.  291 

z.  Da  Costa  I.  193 

V.  Ellicott  I.  184,326  ;  II.  27 

r.  Hawkes  I.  129 

r.  Ilealcy  I   66-1  ;  II.  370 

V.  Hotchkiss  II.  141 

z.  Hunt  I.  29!    293 


INDEX    TO  CASES    CITED. 


Ivii 


Grant  v.  Jackson 
V.  Long 
V.  Mills 
V.  Reid 
V.  Sliaw 


II.  481 
I.  374 

II.  1G6,  1G8 

II.  298 

I.  28.5,  298,  302 


V.  Vaughan     I.  10,  12,  177  ;  II.  08, 

111,  114,  269,  276,  280,  288, 

480,  592 

V.  Welchnuin  I.  200,  203 

Graves  v.  Clark.  II.  504 

V.  Dash  I.  654  ;  II.  342,  372 

V.  Hull  II.  607 

V.  Key  II.  472 

V.  Tucker  I.  236 

V.  Wood  II.  309 

Gray,  Case  of  II.  107 

V.  Adams  II.  634 

V.  Bank  of  Kentucky      I.  189  ;  II. 

438 

V.Bell      1.268,378,381,382,383, 

519,  520,  559 

V.  Brown  I.  240;  II.  249,  415, 

416,  420 

V.  Donahoe  I.  46 

V.  Fowler  II.  155,  410 

V.  Givens  II.  639 

V.  Handkinson  I.  210 

V.  Kernahan  11.  266,  292,  293 

X.  Mendez  II.  646 

V.  Milner  I.  61,  62,  289 

V.  Palmers  II.  477,  487,  590 

V.  Wood  I.  41  ;  II.  443,444 

Greeley  v.  Thurston  I.  411,  413,  417  ; 

II.  213,  461,  462 

V.  Waterhouse  II.  173 

Greely  v.  Dow  I.  240 

V.  Hunt  I.  446 

V.  Smith  II.  174 

Green  v.  Ames  II.  647 

V.  Darling  I.  482,  487 

■c.  Davies  1.24,31 

«.  Deakin  1.125,127 

r.  Dodge  II.  137 

r.  Drebilbia  1.381 

V.  Goings  I.  309 

V.  Jackson  I.  57,  220,  456 

V.  Morse  11.  415 

V.  Sarmiento  11.  359,  360 

V.  Skipworth  I.  22 

V.  Stone  II.  297 


Green  v.  Sutton 
Grcenawalt  v.  Kreidcr 
Greene  v.  Ely 

r.  Farley 
Grcenhow  v.  Boyle 
Greening,  Ex  parte 
Grecnleaf  v.  Cook 

V.  Kellogg 
Grcenough  v.  Smead 
Greenshields  v.  Crawford 
Greenslade  v.  Downer 


II.  465 
1.  238 

n.  176 

1.483 

I.  33 

II.  5,  16 

I.  210 

II.  424,  463 

II.  120,  121 

II.  479 

I.  138 


Grecnstreet  v.  Carr        II.  188,  263,  264 
Grecnway,  Ex  parte      II.  287,  296,  297, 

299,  302 

V.  Hindley        I.  614  ;  II.  497 

Greenwood  v.  Curtis  II.  151,  321 

V.  Pattison  I.  199 

Greer  v.  Perkins  11.  95 

Gregg  V.  Gregg  II.  629 

Gregory  v.  Allen  I.  594 

V.  Howard  II.  479 

V.  Hurrill  II.  636 

V.  Paul  I.  84 

v.  Pierce  I.  85 

V.  Scott  I.  210 

V.  Thomas  II.  154 

V   Walcup  I.  313 

Grellier  v.  Neale  II.  475 

Greneaux  v.  Wheeler  I.  256  ;  II.  268,  275 

Grew  V.  Burditt  II.  604,  608 

Grey  v.  Cooper  I.  70 ;  II.  3 

Gricc  V.  Ricks  II.  137 

Gridley  v.  Dole  U.  505 

V.  Rowland  II.  169 

Griffin  V.  Ashby  II.  660 

V.  Chubb  II.  618 

V.  Evans  II.  610 

?).  Goff  1.373,401,596,598 

V.  The  Justices  II.  659 

Griffing  V.  Harris  II.  470 

Griffith  V.  Cox  II.  553 

V.  Reed  II.  243 

V.  Williams  II.  477 

Griffiths  r.  Owen  11.151,154 

Griffijn  v.  Jacobs  I.  358 

Grigby  v.  Oakes  II.  91,  189,  620 

Grigg  V.  Cocks  II.  231 

Griggs  V.  Howe  I.  280  ;  II.  11 

Griggsby  v.  Hair  11.  168 

Grimes  v.  Talbot  II.  304,  305 


I  nil 


INDEX   TO    CASES    CITED. 


Grimshaw  v.  Bender  I.  56,  650,  653  ; 

II.  341,  346 

Grimstead  v.  Briggs  II.  565 

Griswold  v.  Davis  I.  50,  224,  230,  260,  2S0 

V.  Pitcairn  II.  330 

V.  Slocum  II.  125 

V.  "Waddington  I.  152 

Grogan  v.  McMahon  II.  603,  617 

Grosvenor  v.  Flax  &  Hemp  Manuf.  Co. 

II.  408 
V.  Stone  I.  500,  540 

Groth  V.  Gyger  I.  526 

Grotou  V.  Dallheim     I.  529,  556,  595,  601 
Grover  v.  Grover  11.  53,  54,  55,  446 

Groves  p.  Stephenson  I.  251 

Grugeon  v.  Smith  I.  468,  469 

GrumHes  v.  Grumbles  II.  630 

Grundy  v.  Grundy  II.  640 

Grutacap  v.  WouUuise  I.  664 

Guardians  of  Lichfield  Union  v.  Greene 

II.  188 

Guernsey  v.  Burns  II.  437,  439 

Guerry  v.  Ferryman  II.  46 

Guichard  v.  Superveile  II.  647 

Guidon  V.  Robson  II.  440 

Guignard  v.  Parr  II.  642 

Gullett  V.  Hoy  II.  604 

Gunn  V.  Brantley  II.  629 

V.  Todd  II.  606 

Gunson  r.  Mctz  I.  616,  618;  II.  497 

Gurly  V.  Gettysburg  Bank  I.  507 

Gurney  v.  Behrend  II.  34,  116 

V.  Langlands  II.  476,  477 

V.  Womersley  II.  37,  39,  187,  589 

600 

Gustine  v.  Union  Bank  I.  241 

Gutteridge  v.  Smith  II.  479 

Guy  V.  Franklin  II.  395 

V.  Harris  I.  25 

V.  Hull  II.  470 

V.  Tarns  11.  652,  653 

Guyard  v.  Sutton  I.  88 

Gwinn  v.  Wliitakcr  II.  227,  228 

Gwinnell  v.  Herbert  U.  25 


Hackcnborry  v.  Shaw 
Hackct  r.  Martin 


n.  392 
II.  472 


Hackett  v.  Kendall 
Haokley  v.  Sprague 
Haddock  v.  Bury 

r.  Murray 
Hadduck  r.  Wilmarth 


II.  634 

II.  420 

I.  596 

I.  456,  508 

II.  470 


Hadwen  v.  Mendisabal  (2  C.  &  P.  20)   II. 

154,  308 

T.  Mendizabel  (10  J.  B.  jMoore, 

477)  II.  151,  441 

Hagedom  v.  Reid  II.  495 

Hager  v.  Boswell  I.  507 

Hagerty  v.  Scott  II.  641 

Hague  ».  French  1.41,49,386 

Haigh  V.  Brooks  II.  130 

Haine  v.  Tarrant  I.  70 

Haines  v.  Dennett  II.  467,  470 

Hair  v.  La  Brouse  II.  507 

Haldeman  v.  Bank  of  Middletown     I.  131 

Halden  v.  Crafts  11.  641 

Hales's  Case  II.  584 

Hale,  Ex  parte  11.613 

V.  Baldwin  II.  364 

V.  Burr  I.  364,  450,  525 

V.  Gerrish  I.  72,  74 

V.  Lawrence  II.  634 

V.  Russ  II.  568 

Halkctt,  Ex  parte  11.174 

Hall,  Ex  parte  II.  5 

V.  Cole  II.  241,  247 

I'.  Commonwealth  Bank  1.109 

V.  Constant       "  II.  222 

V.  Daggett  II.  412 

V.  Davis  II.  641 

V.  Farmer  I.  44;  IL  130 

V.  Freeman  I.  596,  622 

V.  Fuller  IL  80,  212,  285,  596 

r.  Gentry  11.454 

V.  Glidden  II.  605 

V.  Green  I.  570 

V.  llaggart  II.  413 

V.  Hale         L  2.58  ;  IL  275,  276,  468 

V.  Hu.-;e  II.  477 

V.  Marston     I.  297  ;  II.  62,  222,  223 

r.  Nasmith  II.  635 

V.  Newcomb  II.  123,  125,  520 

r.  Phelps  11.477 

V.  Rodgcra  II    137 

V.  Smith  I.  130,  247,  378,  382, 

3^3, 519 

r.  Tufts  I.  .'32 


INDEX   TO   CASES   CITED. 


Ux 


Hall  r.  Vt.  &  Mass.  R.  R.  Co.        II.  G.36 

V.  Wilcox  I.  2.34 

V.  Wilson     I.  115,  276  ;  II.  275,  278 

V.  Wood  II.  225 

Halle  V.  Howell  I.  371 

Halliday  v.  MoDougall       I.  57,  506,  634, 

642  ;  II.  324 

V.  Martinet  II.  495 

V.  Ward  II.  661 

Hiillifax  V.  Lyle  I.  321 

Haliowell  v.  Page  I.  659 

Hallowell  &  Augusta  Bank  v.  Howard 

11.91 

Halsey  f.  Carter  11.616 

V.  Salmon  I.  516 

Halstead  v.  Mayor  of  New  York       I.  165 

V.  Skelton     I.  309,  425  ;  II.  474 

Haly  V.  Brown     I.  478,  482,  487,  490,  491 

V.  Lane  I.  84  ;  II.  27 

Hamber  v.  Roberts  II.  479 

Hamaker  c.  Eberley  I.  198 

Hameliii  v.  Bruck  II.  331,  566 

Hamer  v.  Harrell  II.  406 

V.  Johnson  I.  311,  366 

Hamilton  v.  Le  Grange  U.  424 

V.  Myrick  I.  45 

V.  Seaman  I.  145,  147 

V.  Smith  I.  471 

V.  Summers  I.  128 

Hammer  v.  Rochester  11.  228 

Hammersley  v.  Knowlys  II.  230 

V.  Purling  II.  82 

Hammett  v.  Yea  II.  410 

Hammond's  Case  II.  476 

Hammond  v.  Aiken  I.  131 

V.  Anderson  II.  166 

V.  Chamberlin        II.  119,  141 

V.  Dufrene  I.  549 

V.  Hammond  II.  647 

r.  Hopping  II.  292,  420 

V.  Messenger  II.  45 

V.  Plank  II.  292 

V.  Smith  II.  414 

Hamor  v.  Moore  II.  55 

Hampshire  Bank  v.  Billings  I.  245 

Hane«  v.  Miller  II.  136,  139,  439 

Hanchet  v.  Birge  II.  510 

Hanchett  v.  Gray  II.  607 

Hancock  v.  Bliss  II.  649 

V.  Bryant  I.  238 


Hancock  v.  Fairfield 
Hancock  B:uik  v.  Joy 
Handy  v-  Dobbin 
Hank  v.  Crittenden 
Hankey  v.  Hunter 
V.  Smith 
V.  Trotman 
v.  Wilson 
Hankins  v.  Shoup 
Hai'Jcs  V.  Deal 

V.  Dunlap 
V.  M'Kee 
Hanrick  v.  Andrews 


II.  519 

1.81 

II.  188 

II.  l?-- 

II.  226 

II  605 

I.  378;  11.  72 

II.  486 

II.  604 

I.  70 

11.31 

II.  207 

II.  379 


V.  Farmers'  Bank  I.  650 

Hansard  v.  Robinson     I.  230  ;  II.  85,  215, 
286,  287,  292,  294,  295,  296,  302,  311 
Hansbrough  v.  Gray    I.  229,  326,  558,  648 
Harbeck  v.  Craft  I.  273  ;  II.  74 

Harbert  v.  Dumont  I.  240 

Hnrbold  v.  Kuntz  II.  649 

Hardee  v.  Dunn  II.  639 

Harden  v.  Palmer  II.  635,  636 

Harden  v.  Wolf  II.  542 

Hardesty  v.  Newby  II.  485 

Hardie  v.  Mills  II.  48 

Harding  v.  Mott  II.  469 

Hardman  v.  Bellliouse  II.  217 

Hardwick  v.  Blanchard  II.  466 

Hardy  v.  Collector- General      II.  150,  154 
V.  Corlis  II.  618 

v.  Waters  I.  71 

V.  Woodroofe  I.  307,  427,  428 

Hargous  v.  Laliens  I.  661 

Hargrave  v.  Duseuberry    II.  38,  101,  186, 

189,  600 

Hargreaves  v.  Hutchinson  II.  409 

V.  Michell  II.  629 

Harick  v.  Jones  II.  431 

Harker  v.  Anderson      I.  407,  537  ;  H.  57, 

58,  59,  67,  71,  73 

V.  Brink  II.  373 

V.  Conrad  II.  227 

Harlan  v.  Seaton  II.  639 

Harley  v.  Greenwood  II.  155 

V.  Thornton     II.  98,  103,  105, 193 

Harlow  v.  Boswell  II.  510 

Harman  r.  Anderson  11.166 

r.  Lasbrey  II.  466 

Harmer  r.  Bell  II.  170 

V.  Killing  I.  73 


Ix 


INDEX   TO   CASES    CITED. 


Harmer  *.  Steele 

II.  441 

Harnor  v.  Groves 

II.  524 

Harnsbarger  r.  Kinney 

I.  241 

Harnsberger  v.  Geiger 

n. 

245,  533 

Harper  r.  Butler 

II. 

353,  374 

V.  Calhoun 

I.  173 

».  Gilbert 

11.24 

V.  Hampton 

II. 

318,  350 

r.  The  State 

II.  558 

Barrel  v.  Bixler 

I.  395 

V.  Petty 

II.  609 

Harrell  v.  Marston 

I.  39 

Harriman  v.  Hill 

II.  444 

Harrington  v.  Fry 

II.  479 

V.  Inhabitants  of  Lincoln 

11.479 

r.  Stratton  I.  209 

Harris  v.  Alexander  I.  483 

V.  AUnutt  I.  601,  604,  620 

U.Boston  11.407,441 

r.  Brooks     I.  233,  235,  242,  250 ; 

II.  503,  515 

V.  Caston  II.  509 

V.  Clark   I.  179,  290,  331,  332,  335, 

363  ;  II.  55,  56,  59,  60 

V.  Farwell  II.  200 

V.  Lindsay  II.  200 

r.  MandeviUe         IL  326,  361,  369 

V.  Memphis  Bank  I.  494 

V.  Packer  I.  362,  365,  426 

r.  Pierce  11.519 

r.  Robinson  1.490,491,505 

r.  Roof  I.  214 

V.  Shipway  II.  264 

V.  Wall  I.  67,  72,  77 

v.  Warner  II.  2.53 

Harrisburg  Bank  v.  Forster  II.  469 

Harrison  v.  Close  I.  2.50 

y.  Courtauld         L  229,  326  ;  II. 

248,  249,  250 

r.  Crowder  1.419,435 

V.  Dickson  II.  399 

V.  Edwards  II.  339 

V.  Fane  I.  68 

I'.  Ilnnncl  II.  415,  420 

r.  Henderson  II.  608 

V.  Ruscoc     I.  473,  476,  499,  504, 

505 

V.  Stacy  II.  383 

r.  Sterry  II.  319,  360,  362 


Harrison  v.  Williamson  I.  300,  336 

V.  Young  II.  361 

Harrow  v.  Dugan  I.  25  ;  II.  450 

Harryman  v.  Robertson  II.  301 

Harsh  v.  Hanauer  II.  627,  644 

Hart  V.  Alexander  II.  200 

V.  Boiler  IL  154,  160,  204,  218 

V.  Dewey  II.  223 

V.  Dorman  II.  228 

»;.  Green  L  309,  311,432 

V  Hudson     L  241  ;  IL  130,  135,  141 

V.  King  IL  290 

P.Long  L  311,  596,  598,  610 

V.  M'Intosh  II.  468 

V.  Missouri  State  Mat.  F.  &  M. 

Ins.  Co.  L  165  ;  IL  619 

V.  Nash  IL  655 

V.  Palmer  IL  493 

r.  Potter  I.  189 

V.  Prendergast  IL  649 

V.  Smith  L  405 

V.  State  IL  588 

V.  Stephens  L  87,  88 ;  IL  447 

V.  Wilson  II.  495 

».  Windle  L  358  ;  IL  442 

Harter  v.  Comstock  IL  624 

?;.  Moore  L  241  ;  IL  533 

Hartford  Bank  r.  Barry  I.  173,  358, 

359,  385 ;  II   209 

V.  Hart       I.  478  ;  IL  492, 

594 

V.  Stedraan       L  358,  483, 

509 

Hartley  i'.  Case        L  416,  466,  469,  516  ; 

II.  214 

V.  Hitchcock  II.  165 

r.  Manton  L  328  ;  IL  236 

V.  Wilkinson  I.  43  ;  II.  539 

Ilartman  v.  Burlingamc  I.  237 

Hartness  v.  Thompson  I.  249,  250 

Ilartop  V.  Hoarc  II.  158 

Hart's  Case  L113 

Hartsliorn  v.  Green  IL  438 

Ilartwell  v.  Candler  I.  432 

Harvey,  Ex  parte  I.  241 

V.  Archbold  IL  376,  378 

T.  Kay  I.  62 

V.  Laflin  IL  51 S 

V.  Martin  ]    282,  284 

V.  Sweusy  I.  248 


INDEX   TO   CASES   CITED. 


Ixi 


Harvey  v.  Towers       I   188 

;  II. 

283,  493 

Ilaxtun  I'.  Bishop      I.  309 

310,  430,  431  ; 

V.  Troupe 

I. 

.596, 

597,  608 

II. 

88,  91,  44.5,  604 

Harwell  v.  Steel 

II. 

615,  646 

Hay  V.  Goidsmid 

I.   lOG 

Harwood  v.  Jarvis 

I. 

545,  647 

Hayden  v.  Johnson 

II.  651) 

V.  Kiersted 

II.  126 

Ilaydock  v.  Lynch 

I.  43 

Hasbrook  v.  Palmer 

1.47 

IIav<lon  V.  Williams 

II.  648,  654 

Hascall  v.  Whitmore 

I.  261 

Hayes  v.  Ward 

I.  242 

Hasey  v.  White  Pigeon  B 

.  S 

Co. 

I.  63, 

Havling  v.  Mulliall 

II.  234 

288 

Haynes  v.  Bccknian 

I.   171 

Raskins  w.  Dunliam 

II.  94 

r.  Birks     I.  514,  515,  516;  II.  213 

Haslett  V.  Eliriek 

I. 

51.5 

;  II.  251 

V.  Foster    1. 119; 

11.265,271,293 

i\  Kunhardt 

I.  445 

V.  Harrison 

II.  223 

Hastings  v.  McKinley 

II   53 

V.  Prothro 

II.  605 

V.  Wiswall 

II. 

424,  425 

V.  Thorn 

I.  178;  II.  624 

Hatch  V.  Dennis 

II.  472 

Hays  V.  Cage 

II.  627 

V.  Dickinson 

II.  570 

V.  M'Clurg 

II.  308 

V.  Searles          I.  109, 

258 

;  II.  271 

V.  Mouille 

II.  178 

V.  Spearin 

II.  530 

V.  Stone                II 

.   154,  161,  218 

V.  Spofford 

II.  636 

Ilayward  v.  Hapgood 

II.  638 

T.  Trayes 

I.  193 

V.  Hayward     I. 

86,  87  ;  II.  447 

Hatcher  v.  Hatcher 

II.  167 

V.  Lc  Baron 

II.  406,  434 

V.  McMorine 

II, 

336, 

339,  340 

Haywood  v.  Chambers 

I.  216 

V.  Stalworth 

I.  285 

Hazard  v.  Loring 

n.  623 

Hatchett  v.  Baddeley 

1.78 

V.  Smith 

II.  420 

Hatfield  v.  Perry 

n.  495 

Hazelbaker  v.  Reeves 

II.  652 

Hathaway  v.  Haskell 

II.  658 

Hazelhurst  v.  Kean 

II.  339,  342 

Hatten  v.  Robinson 

11.94 

Ilazelton  Co.  v.  Ryerson 

I.  478,  497,  498 

Hatz  V.  Snyder 

II.  471 

Head  v.  Sewell 

I.  306 

Hauck  V.  Hund 

II.  502 

Heald  v.  Warren 

II.  153 

Haussonllier  v.  Hartsinck 

I.  44  ;  II.  22 

Healey  v.  Story 

I.   170 

Haven  v.  Ilobbs 

I 

.  92,  200 

Healy  v.  Oilman        I.  552 

;  II.  71,  83,  84 

V.  Hudson 

11.411 

V.  Gorman 

II.  371,  379 

Havens  v.  Huntington 

II.  95 

Heath,  Ex  parte        I.  534,  543,  555,  557 

V.  Talbott 

I.  584 

V.  Chilton 

I.  156 

Haviland  v.  Bowerbank 

II.  392 

V.  Hall 

II.  53 

Hawes  v.  Armstrong 

II. 

128,  130 

V.  Key 

I.  237 

V.  Dunton 

I.  125 

V.  Percival 

II.  199 

Hawkes's  Case 

I 

.  61,  289 

V.  Sansom              ] 

.  18.5,  186,  187  ; 

Hawkes  v.  Phillips 

II. 

121,  126 

II.  266,  493 

V.  Salter 

I. 

482,  512 

Hcaton  v.  Ilulbert 

II.  132,  137 

Hawkeswood's  Case 

II.  583 

Heaverin  v.  Donnell 

I.  301  ;  II.  509 

Hawkey  v.  Borwick 

1.427 

Hebden  v.  Hartsink 

II.  182,  436 

Hawkins  v.  Barney 

II.  381 

Ileckcrt's  Appeal 

II.  629 

v.  Fcllowes 

II.  564 

Heckscher  r.  Binney 

II.  518 

V.  Ramsbottom 

I.  247 

Hedger  v.  Horton 

II.  471 

r.  Rutt    I.  481  ; 

II 

100, 

316,492 

V.  Steavenson 

I.  468,  469 

V.  Tiiompson 

II.  244 

Hedges  v.  Sealy 

II.  46.  604 

V.  Watkins 

1.47 

Hcdley  v.  Bainbridge 

I.  138;  II.  478 

Hawley  v.  Foote 

II 

.  86,  159 

Hcffclfinger  v.  Shutz 

II.  577,  579 

V.  Sloo 

/ 

II.  376 

Heffncr  r.  Wenrich 

II.  550,  577 

Ixii 


INDEX   TO   CASES   CITED. 


Hefford  t.  Morton 
Heilbron  r.  Bissell 
Hellings  v.  Hamilton 
Helme  c.  Middleton 
Helmsloy  v.  Loader 
Helps  V.  Winterhottom 
Hemings  v.  Robinson 
Hemmenway  r.  Bradford 
V.  Stone 


II.  240,  533 

II.  224,  228 

II.  98,   107 

I.  449  ;  II.  87,  206 

II.  479,  480,  489 

II.  642 

II.  486 

11.94 

I.  251,  264; 

II.  215,  560 
II.  218,  219 

II.  580 


Hemming  v.  Brook 

V.  Trenery 

Hemp  V.  Garland  U.  644 

Hemphill  r.  Bank  of  Alabama  1.109 

V.  Hamilton  I.  155 

Hempstead  v.  Reed  II.  359 

Henderson  v.  Anderson  II.  468 

V.  Appleton  U.  105,  183 

V.  Australian  Royal  Mail 

Steam  Nav.  Co.  I.  1 63 


V,  Fox 

».  Gillian 
V.  Irby 
v.  Johnson 
V.  Lewis 
j;.  McDuffee 
V.  "Wilson 


L  68 
II.  609 
II.  266 
IL  128 
II.  609 
II.  253 
II.  550 


Hendricks  v.  Franklin  I.  654  ;  II.  342, 371 

V.  Judah  I.  381  ;  II.  9 

Henfree  v.  Bromley  II.  574 

Honly  ».  Strceter  11.621 

Hcnman  v.  Dickinson  II.  549,  577 

Hcnning  v.  Werkheiser  11.  554 

Henriques  v.  Dutch  W.  L  Co-  IL  358 

Henry  v.  Bishop  II.  477 

r.  Coleman  IL  540 

T.  Flagg  II.  424 

V,  Hazen  I.  45 

V.  Jones  L  373,  385,  386 

V.  Lee  L  419 

r.  Raiman  IL  623,  626 

V.  Sargcant  IL  327,  869 

V.  Scott  I.  255 

r.  Thorpe  II.  633 

IIcnHchcl  r.  Malilcr  1.41 

Henshall  v.  Roberts  L  155,  156 

Hcnshaw  v.  Coc  IL  244 

V.  Liberty  M.  F.  &  L.  Ins.  Co. 

L  310 

Hepburn  v,  Iloag  IL  605 


Hepburn  v.  Ratliff  I.  Onr   t98 

V.  Toledano  I.  455,  458 

Herbert  ».  Huie  I.  1 1 0,  1 1 1 ,  11 5 

Herd».  Bissel  IL  511 

Herkimer  County  Bank  v.  Cox         I.  634 

Hern  v.  Nichols  I.  273 

Herndon  v.  Givens  IL  304 

Herrick  v.  Bennett  I.  381 

V.  Borst  L  235,  237 

V.  Carman  II.  120,  443,  459 

V.  Malin  IL  582 

V.  Orange  Co.  Bank  I.  246 

V.  Whiting  IL  600 

V.  Whitney     IL  37,  38,  482,  485, 

589 

Henies  v.  Jamieson  II.  424 

Herring  v.  Dorell  I.  198 

17.  Sanger  II.  200 

Hertle  v.  Schwartze  IL  629 

Hervey  v.  Harvey  II.  550,  571 

Hesketh  v.  Fawcett  I.  245  ;  II.  621 

Hess  V.  Werts  II.  89 

Hestres  v.  Petrovie  I.  499 

Hetficld  V.  Newton  IL  411 

Hcthcrington  v.  Kemp     I.  481  ;  II.  491, 

496 
Ileubach  r.  MoUmann  I.  104 

Hcvencr  v.  Kerr  II.  92 

Hevey's  Case  IL  583 

Hcwet  V.  Goodrick       I.  245  ;  II.  240,  533 
Hewett  V.  Buck  II.   170 

Hewitt  ('.  Thompson  I.  483 

Hewlett  V.  Hewlett  II.  634 

Ileydon  v.  Thompson  II.  494,  580 

Heylyn  t).  Adamson  1.443;  IL  181 

Heys  V.  Heseltino  II  •  489 

Hcytlc  V.  Logan  II.  406 

Ilcyward  v.  Lomax  II.  227 

Hey  wood  v.  Ferrin  IL  146,  512,  540. 

541,  542 
r.  AVaring  IL  165 

Iliatt  V.  Hough  II.  645 

V.  Simpson  II.  519 

Hibblcwhite  v.  M'Morine  II  35,  36 

Ilickerson  r.  McFaddin  11.018 

Ilickling  V.  Hardey     I.  329,  339,  351  ;  II. 

154,  15.'i 

Hickman  v.  Rcincking  I.  125 

V.  Ryan  I.  50J 

Iliciok  r.  Ilickok  11.  63) 


INDEX   TO   CASES    CITED. 


Ixiii 


Hicks  V.  Brown         II.  326,  336,  343,  346, 

347,  359,  371 

V.  Duke  of  Beaufort       I.  604,  614, 

618 

V.  Hinde  I.  94,  96 

V.  Hotchkiss  II.  361 

V.  Lusk  II.  658 

Hidden  v.  Bishop  II   143 

V.  Cozzens  II.  651 

Higgens's  Case  11.  154 

Higgins  V.  Mcrvin  II,  412 

V.  Morrison    II.  31 7,  502,  596,  621 

V.  Nichols  I.  425 

V.  Packard  II.  179,  217 

V.  Scott  II.  631 

V.  Watson        I.  44  ;  II.  125,  302, 

303,  305 

Higginson  v.  Gray  I.  199 

Higgs  V.  Holiday  II.  110,  1 13 

j;.  Warner  II.  647 

Highmore  v.  Primrose  I.  194 

Uightower  v.  Ivy        I.  446,  529,  584  ;  II. 

246,  501 
Hildeburn  v.  Turner  I.  645 

Hill  r.  Beebc  II.  159 

V.  Bostick  II.  247 

V.  Buckminster  I.  179 

V.  Bull  II.  240 

V.  Butler  II.  610 

V.  Calvin  11.  577 

T.  Crary  II.  484 

r.  Ely  11.519 

T.  Gaw  II.  69,  504 

V.  Gayle  II.  220 

V.  George  II.  376 

V.  Halford  I.  39 

V.  Heap  I.  338,  584,  630 ;  II.  73 

r.  Josselyn  II.  663 

V.  Kendall  II.  652,  660,  661 

V.  Kroft  I.  256,  260 

r.  Lackey  11.301,305 

V.  Lewis  I.  391  ;  II.  45 

V.  Martin  I.  537,  630 

V.  Meeker  II.  424 

V.  Norris  I.  538,  539,  545,  546 

V.  Norvell  I.  385,  490 

».  Planters'  Bank  I.  514 

V.  Southerland  II.  224,  226 

V.  Sweetser  L  232 

r.  Tucker  II.  627,  643 


Hill  V.  Vanell 
Hilliard  v.  Walker 
Hills  V.  Bannister 

V.  Barnes 
Hilton  V.  Burley 

V.  Fairclough 
V.  Shejjherd 
V.  Smith 
Hinchman  v.  Lybrand 
Hinckley  v.  Marccur 
Hindle  v.  O'Brien 


I.  490,  491,  492 

II.  607 

I.  97,  169,  209 

II.  565,  576,  577 

II.  224,  226,  22: 

I.  51.1 

I.  269,  504,  507 

II.  44,  494 

IL  176 

II.  367 

II.  416 


Hine  v.  Allely  I.  427,  435,  438,  457 

r.  Handy  11.410 

Hinely  v.  Margaritz  I.  73,  74 

Hinesburgh  v.  Sumner  I.  215 

Hinsdale  u.  Miles         L  368;  II.  261,  287, 

288,  298 

V.  Orange  Bank    I.  231  ;  II.  93, 

100,  293,  297,  298,  303,  309,  312 

Hinsdill  v.  Safford  L  260 

Hinton's  Case  II.  266,  268 

Hinton  v.  Bank  of  Columbus  I.  323 

Hitchcock  V.  Aicken  II.  323 

V.  Cloutier  I.  24 

V.  Humfrey  II.  137 

Hoadley  v.  Bliss  I.  594  ;  II.  655 

Hoar  r.  Clute  II.  154 

V.  Da  Costa  I.  263 

Hoard  v.  Garner  I.  481 

Hoare  v.  Allen  I.  152 

V.  Cazenove  I.  316 

V.  Graham        I.  301,  584  ;  II.  503, 

529 

Hobart  v.  Conn.  Turnpike  Co.         II.  644 

V.  Dodge  I.  39 

Hobson  V.  Davidson  H.  162,  205 

Hoch's  Appeal  II.  630 

Hocker  v.  Jamison  II.  550 

Hodcnpyl  v.  Vingerhoed  II.  478 

Hodgdon  v.  Chase  II.  648 

V.  Hodgdon  II.  397 

Hodge  V.  Fillis  L  306,  615 

V.  Manley  II.  647 

Hodges  V.  Eastman  II.  477 

V.  Gait  I.  495 

V.  Hall  I.  45 

r.  Shuler       11.147,149,319,326 

V.  Steward  II.  25 

Hodgkins  v.  Bond  II.  131 

Hodgkinson  r.  Wyatt  II.  401 


Ixiv 


INDEX   TO   CASES    CITED. 


Hodgson's  Case 
Hodgson  r.  Loy 

r.  Temple 
Hoff  V.  Baldwin 
Hoffman  r.  Coombs 

r.  Smith      I. 
Hogaboom  v.  Herrick 
Hogan  V.  Cuyler 
Hogatt  V.  Bingaman 
Hogg  V.  Snaith 
Hoggatt  V.  Wade 
Hoit  V.  Underbill 
Holbrook  v.  Lackey 

V.  Mix        I. 
V.  Vibbard 
Holbrow  V.  Wilkins 
Holden's  Case 
Holden  v.  Cosgrove 

V.  Pollard 
Holdsworth  v.  Hunter 
Holeman  v.  Hobson 
Holiday  v.  Sigil 
Holl  r.  Hadley 
Holland  v.  Chaffin 

V.  Chambers 
V.  Harris 
T.  Hatch 
V.  Jourdine 
V.  Mosteller 
V.  Turner     I 
Hollenbcck  v.  Shutts 
HoUey  i;.  Adams 
V.  Youngc 
Holliday  v.  Atkinson 

Hollicr  V.  Eyre  I. 

HoUis  V.  Claridge 

V.  Palmer     H. 

Holly  V.  Adams 

Holman  v.  Criswell 
r.  Johnson 
V.  Whiting 

Holme  V.  Barry 
i>.  Green 
V.  Knrspcr 

Holmes  r.  Burton 
V.  D'Camp 
T.  Dole 
V.  Holmes 
r.  Kcrrison 


II.  587 
II.  178 
I.  215 
II.  496 
n.  247 
534,  537,  544,  545 

I.  237,  240 

I.  404 
I.  483 

I.  106 
II.  168 

I.  76 
II.  608 
258;  II.  275,  278 
II.  336 
II.  139 
II.  585 

I.  279 
II.  409 

I.  59  ;  II.  332 

I.  191 
II.  264,  265 

II.  135 
II.  655 

II.  416,  420,  471 
11.  457 
II.  573 
II.  458 
II.  424 

529,  556,  557,  571 
II.  502 

II.  55 
II.  606 

1.66,  178,  191, 

197;  II.  55 

234;  II.  515,  533 

II.  165 

397,  648,  654,  6.56 

I.  179 

II.  630 
II.  319,  321,  3.30 

I.  569 

II.  184 

II.  656 

I.  189;  II.  493 

I.  131 

II.  151,  308 

I.  239 
II.  623 
II.  644 


Holmes  r.   Porter  I.  128 

V.  Remsen  II.  387 

V.   Staines  I.  615 

V.   Williams  II.  419 

V.   Wilson  II.  436 

Holt  V.  Miers  II.  503 

r.  Moore  II.  509 

V.  Salmon  II.  336 

V.  Squire  II.  477 

V.  Ward  I.  66 

Home  Ins.  Co.  v.  Green  I.  474 

Homer  v.  Wallis  II.  554 

Homes  v.  Smith  (20  Maine)  I.  401 

V.  Smyth  (16  Maine)  1.221,  383; 

II.  495 

Homniell  v    Gamewell  I.  243 

Honeycut  v.  Strother  II.  530 

Honore  v.  Colmesnil  II.  91,  193 

Hooker  v.  Gallagher  II.  448 

Hooper  r.  Spicer  II.  611 

V.  Stephens  II.  655 

V.  Williams  I.  17,  18,  21 

Hoopes  V.  Newman  I.  493,  511 

Hope  V.  Alley  II.  642 

Hopes  V.  Alder  I.  269,  507,  596,  597,  612 

Hopkins  v.  Boyd 

V.  Crittenden 
V.  Hopkins 
V.  Liswell 
v.  Megguire 
V.  Railroad  Co. 
V.  Wri-rht 


I.  125,  261 

II.  396 

II.  641 

I.  595,  597,  601 

II.  607,  616 

I.  26 

II.  631 

Hopkirk  v.  Page     L  460,  531,  537,  539, 

540,  546 

Hopley  V.  Dufresne  I.  596,  601,  603 

Hopper  r.  Eiland  I.  48  ;  II.  501 

V.  Richmond  II.  392 

V.  Sisk  II.  244 

Hopping  V.  Quin  I.  411 

Horah  v.  Long  II.  451 

Hordern  v.  Dalton  II.  316 

Horford  v.  Wilson  L  615 

Horn  V.  Fuller  L  133,  199 

V.  Nash  II.  393 

Horncastle  v.  Farran  II.  169 

Home  V.  Bodwell  I.  235,  239 

V.  Redfearn  1    24 

Horner  r.  Pilkington  II.  624 

V.  Speed  II    660 

Horton  i;.  Frink  H    244 


INDEX   TO   CASES    CITED. 


Ixv 


Hortons  v.  Townes  I.  115 

Hortsman  v.  Hcnshaw      1.  322,  323 ;  II. 

592 

Hosford  V.  Nichols  II.  376,  377 

Hosier  v.  Arundell  I.  155 

Hostler's  Case  II.  165 

Hough  V.  Barton   II.  290,  291,  293,  309 

V.  Gray  I.  44;  II.   119,   130 

V.  May  II.  85 

Houghton  V.  Adams  II.  103,  193 

V.  Houghton  II.  618 

V.  Mann  II.  637 

V.  Maynard  II.  364 

V.  Page  II.  318,  359,  376 

r.  Payne  II.  419 

Houldltch  V.  Cauty  I.  596,  618 

Houpt  V.  Shields  II.  646 

Houriet  v.  Morris  II.  8 

Housatonic  Bank  v.  Laflin     I.  466,  471, 

473,  509,  510 

Housego  V.  Cowne  I.  473,  477,  493,  500 

Houston  V.  Fellows  II.  618 

Houx  V.  Russell  II.  94 

Hovey  v.  Magill  I.  97 

How  V.  Hall  II.  292 

v.  Kemball  II.  132 

Howard  v.  Ames  I.  275 

V.  Baillie  I.  106 

V.  Brown  I.  237 

V.  Central  Bank  I.  664 

V.  Ives  I.  509,  510,  515 

V.  Oakcs        I.  88;  II.  446,  447 

r.  Shepherd  II.  34,  116 

V.  Thomas  II.   161 

V.  Witham  I.  210 

Howcutt  V.  Bonser  II.  652 

Howe  r.  Bowes  I.  306,  427,  458 

V.  Bradley        I.  373,  471,  494  ;  II. 

397,  425 

V.  Merrill  II.   124,  589 

V.  Nickels  II.  137 

V.  Saunders  II.  637,  654,  662 

V.  Thompson  II.  545 

V.  Ward  I.  244 

V.  Wildes  I.  78 

Howell  V.  Burnett  II.  635 

V.  Crane  I.  261 

V.  Hair  11.^633,  640 

V.  Jones  II.   135 

V.  Wilson  II.  348,  589 

Vol.  l.—E  f* 


Howland  v.  Pench 
Howlett  v.  Holland 
Hoy  V.  Taliaferro 
Ilovt  V.  French 


II.  222 

II.  624 

I.  210 

II    508,  53.7 


V.  Seeley       I.  273,  552;  II.  59,  73 

V.  Wilkinson  II.  4.W,  454 

Hubbard  v.  Davis  I.  237 

V.  Fisher  II.  606 

V.  Page  II.  177 

V.  Troy  I    509,  643 

V.  Williamson  II.  544 

IlubbcU  V.   Coudrey  II.  382 

Hubble  r.  Fogartie  I.   193,  537 

Hubbly  V.  Brown  II.  239,  246,  248 

Huber  v.  Steiner  II.  327.  383,  385 

Hubley  v.  Tamney  H-  605 

Hubner  v.  Richardson  I.  217 

Hudson  V.  Barton  II.  214 

V.  Fawcett  II.  394 

V.  Goodwin  II.  439 

V.  Matthews  I.  394 

r.  Weir  II.  471 

Huey's  Appeal  II.  349 

Huff  V.  Mills  I    260 

V.  Richardson  II.  649,  651,  652 

Huffiim  V.  Ellis  I.  426 

Huffman  v.  Hulbert  I.  237,  239 

Hughes  V.  Harrison  II    53 

V.  Hind  II.  220,  488 

V.  Kearney  II.  166,  167 

V.  Large  II.  604 

V.  Wheeler  II.  151,  160,  308,  410 

V.  Wynne  II.  629 

Huie  V.  Bailey  II.  246 

Hulett  V.  Soullard  I.  243 

Huling  V.  Hugg  I.  14 

Hull  V.  Blake  II.  386,  387 

V.  Peters  II.  621 

V.  Pitfield  II.  215 

Hulme  V.  Coles         I.  239,  241  ;  II.  241 

Hulse  V.  Hulse  I.  197 

Humbert  v.  Ruding  I.  186 

Hume  V.  Peploe         I.  415;  II.  214,  624 

Humphrey  v.  Clark  I.  279,  280 

V.  Moxon  II.  466,  467 

Humphreys  v.  Collier  II.  336 

V.  Crane  I.  233,  237  ; 

II    561,  580 

V.  Guillow     I.  2.^1  ;   II.  560, 

566,  577,  582 


Ixvi 


INDEX   TO    CASES    CITED. 


Humphrej-s  v.  J'ones 
Humphries  v.  Bicknell 
V.   Cliastain 
Hunt  V.  Acre 
V.  Adams 


V.  Aldrich 
V.  Alewyn 
V.  Boyd 
V.  Bridgham 

V.  Edwards 
V.  Ellison 
V.  Fish 
V.  Livermore 
r.  Massey 
V.  Maybee 
r.  Nevers 
V.  Rousmanier 
V.  Sandford 
V.  Stewart 


II.  652 

II.  59,  71 

I.   146 

II.  416 

I.  37,  233,  247,  251  ; 

II.  132,  511,  565,  568 

II.  445 

II.  286 

II.    162 

I.  237  ;  II.  240,  242, 

245,  247,  533 

II.  469 

II.  639 

I.  495 

II.  535 

I.  67,  72,  74 

I.  358,  365,  528,  641 

II.  393 

I.  288  ;  II.  42,  503 

II.  275,  276 

II.  480 

V.  United  States  II.  241,  246 

V.  Wadleigh     I.  446,  529,  595,  601  ; 

11.14 


Hunter,  The 
Hunter's  Case 
Haater,  Ex  parte 

V.  Blodget 

V.  Jeffery 

V.  Jett 

V.  Kibbe 

V.  Potts 

V.  Van  Bomhorst 
V.  Warner 
Huntington  v.  Branch  Bank 


V.  Fincli 
V.  Ilarvcy 
v.  Lyman 
V.  Ziegier 
Huntley  v.  Sanderson 
Hunton  v.  Iiigraham 
Huntress  v.  I'alten 
Hurd  V.  Little 
Hurry  v.  Mangles 
Hurst  V.  Beach 
Husband  v.  Davis 
Huse  V.  Alexander 
Hussey  v.  Freeman 


IL  174 

I.  62 

IL82 

L  32 

I.  33  ;  II.  50,  592 

IL  240,  533 

I.  255  ;  IL  209,  220, 

456,  460 

II.  326,  359,  387 

I.  436,  471 

II.  623,  625 

L  109,  111, 

115 

IL  559,  577 

IL  244,  520 

I.  126 

IL  621,  624 

II.  639 

I.  303 
IL  415 

IL  246,  247 
II.  165 

I I.  .54 
II.  82 

151,  204,  218 
I.  590 


IL 


Hussey  v.  Jacob  I.  313 

V.  Manuf.  &  Mechanics'  Bank 

IL  222 


Huston  V.  Moorhead 
I'.  Noble 
V.  Young 
Hutchins  v.  Hanna 
V.  Hope 
V.  M'Cann 
V.  Okutt 

Hutchinson  v.  Boggs 
V.  Hosmer 
V.  Moody 
V.  Phillips 
Huthwaite  v.  Phaire 
Hutton  V.  Bragg 
V.  Eyre 
V.  Ward 
Hyams  v.  Levy 
Hyde  v.  Fin  ley 

V.  Goodnow 
V.  Johnson 
V.  Paige 
V.  Price 
V.  Stone 
Hyman  v.  Gray 
Hyslop  V.  Jones 


II.  423 

II.  96 

L  41,388;  IL  514 

II.  330 

IL  618 

II.  428 

IL  153,  161,  165, 

177,  218 

I.   189 

IL  407 

II.  9,  10 

IL  94 

IL  374 

IL   165,  171 

L  250  ;  II.  238 

IL  286,  310 

IL  528,  530 

IL  406 

IL  328,  376,  380 

IL  661 

I.  93 

L  78 

I.  622,  62G 

IL  641 

L  482,  484,  487,  488 


Ide  r.  Ingraham  I.  145 

Ihmsen  v.  Negley  I.  127 
Ilsley  V.  Jewett    L  243  ;  IL  151,  155,  655 

V.  Stubbs  IL  178 
Imbush  V.  Mechanics',  &c.  Bank     II.  103 

Imcson,  E.x  parte  I.  46 

Imlay  v.  Ellcfsen  IL  367,  369 

Indiana  v.  Woram  I.  166 

Ingalls  j;.  Lee  IL  428 

IngcrsoU  v.  Long  IL  348 

Ingleliart  v.  Armiger  IL  168 

Inglis  V.  Ilaigh  IL  648 

V.  U.shenvood  IL  319 

Inglish  v.  Brcneman  II.  552,  565 

V.  Watkina  IL  392 

Ingraham  v.  Bowie  II.  635 

V.  Foster  II.  60S 


INDEX   TO   CASES   CITED. 


Ixvii 


Itif^raham  v.  Gibbs 
Ingram  v.  Forster 
Inli.  of  Hardwlck's  Case 

I.  59 

I.  348 

II.  656 

Jackson  v.  King 
V.  Malin 
V.  Newton 

II. 

I.  15C 

572,  574 

I.  37? 

Innes  v.  Dunlop 

II. 

357,  358 

V.  Osborn 

11.577 

V.  Munro 

II. 

144,  .536 

V.  Packer        I. 

310 

,  439 

;  II.  470 

V.  Stephenson 

II.  82 

V.  Parks 

I.  89 

Ipswich  Man.  Co.  v.  Story 

I.   162 

V.  Phillips 

II.  477 

Irchmd  v.  Kip 
Irisli  V.  Cutter 

I. 
II. 

482, 
121, 

487,  488 
124,   133 

V.  Pigott 
V.  Richards 

I. 

401, 

1.289 
402,  508, 

V.  Webster 

II.  452 

515, 

529,  556 

Irons  V.  Irons 

II.  611 

V.  Tuttle 

11.415 

Irvin  V.  Maury 

I.   13 

V.  Union  Bank 

I. 

395,  480 

Irvine  v.  Lowry 

I.  47 

V.  Van  Dusen 

I.  150 

r.  Withers 

I 

310, 

311,  432 

V.  Warwick 

I.  203 

Irving  V.  Veitch 

II. 

644, 

654,  655, 

Jacob  V.  Hart 

II.  570 

Irwin  V.  Planters'  Bank 

661 
II.  297 

V.  Hungate 
Jacobs  V.  Adams 

I 

188 

;  II.  494 
n.  393 

Isaac  V.  Daniel 

II. 

242,   245 

V.  Benson 

1.32 

Isaacs  V.  Elkins 

II.  513 

V.  Hart 

II. 

547,  565 

Isberg  V.  Bowden 

II.  607 

V.  Town 

1.488 

Isbvester,  Ex  parte 
Isett  V.  Hoge 

II.   185 
II.  138 

Jaffray  v.  Dennis 
V.  Frebain 

II.  372 
1.77 

Isham  V.  Fox 

1.393 

JafFrey  v.  Cornish 

II.  161 

Isler  V.  Baker 

I.  135 

James  v.  Allen           II.  359, 

367, 

369,  371 

Isnard  v.  Torres 

1.276 

James  v.  Badger       II. 

241, 

246, 

247,  25C 

Israel  v.  Douglas 

1.336 

77.  CatheiTVOod 

II. 

318,  330 

V.  Israel 

1.25 

V.  Chalmers 

II.  437 

Iverson  v.  Dubose 

n.  663 

V.  Child 
V.  Hackley 
V.  Williams 
Jameson  v.  Swinton 

I 

II.  231 

n.  160 

II.  154 

504,515 

J. 

Jamison  v.  Brady 
Jane.  The 

n.  615 
n.  174 

Jacaud  v.  French 

I.  134  ;  II.  253 

Janson  v.  Thomas 

1.405 

Jackman  v.  Hallock 
Jacks  V.  Darrin 

I. 

584; 

n.  167 

tl.  44,  72, 

300,  309 

January  v.  Goodman 
Jaques  v.  Marquand 
Jardine  v.  Payne 

II.  475 

I.  124 

n.  573 

V.  Nichols        n 

328,  337 

379,  434 

Jarrold  v.  Howe 

11.394 

/ackson  v.  Adamson 
V.  Bard 

II.  638 
n.  472 

Jarvis's  Appeal 
Jarvis  v.  McMain 

I.  393, 

II.  415 
404,  408 

V.  Collins 
V.  Fairbank 

1.626 
II.  661 

V.  Rogers 

V.  St.  Croix  Manuf. 

Co. 

11.43 
I.  478, 

V.  Frier 

II.  298 

479 

V.  Gumaer 

I.  151 

Jefferies  v.  Austin 

1.51,177 

V.  Heath 

n.  437,  445 

Jefferson  v.  Holland 

n. 

107, 

192, 194 

V.  Henderson 

1.410 

Co.  Bank  v.  Chapman 

II.  88, 

V.  Hudson 

I.  3ia 

;  II.  125 

91,  98 

V.  Jackson 
r.  Jacoby 
V.  Jones 

U 

.  297,  306 
II.  580 
II.  420 

JeflFery  r.  M'Taggart 

V.  Walton 
Jcfts  V.  York 

II. 

356,  358 

II.  518 

I.  122 

Ixviii 


INDEX   TO    CASES    CITED. 


Jenkins  v.  Clarkson  I.  241 

V.  Hutchinson  I.  313 

V.  Morris  I.  124,  135 

V.  Reynolds  II.  128 

Jenks  V.  Alexander  II.  228 

V.  Doylestown  Bank        I.  435,  437 

Jenkyns  v.  Usborne  II.  178 

Jenners  v.  Howard  I.  151 

Jenness  v.  Bean  I.  224,  225 

V.  Parker  I.  210 

Jenney  v.  Herle  I.  43 

Jennings  v.  Ins.  Co.  of  Penn.  II.  173 

V.  Mendenhall  II.  621,  622 

z>.  Thomas  II.  121 

V.  Throgmorton  I.  214 

Jennison  v.  Parker  II.  153,  182 

V.  Stafford  I.  198 

Jenys  v.  Fawler     I.  321  ;  II.  99,  196,  482, 

590 
Jerome  v.  Stebbins  I.  264 

».  Whitney  I.  45 

Jerrey  v  Strauss  II.  610 

V.  Wilbur        I.  446,  529,  587,  610 
Jester  v.  Hopper  II.  515 

Jeuue  V.  Ward    I.  70,  281,  282,  284,  285 ; 

11.3 

Jewell  V.  Van  II.  488 

Jewett  V.  Davis  II.  466 

V.  Petit  II.  654 

John  V  John  II.  286,  292 

Johnson,  Ex  parte  I.  500 

V.  Arnold  II.  645 

u.  Bank  of  U.  S.  II.  562 

V.  Barney  I.  26,  226 

r.  Blasdale  I.  109;  II.  567 

v.  Bridge  II.  604 

V.  Chad  well  I.  150;  II.  6 

V.  Cleaves  II.  160,  179 

r.  Cocks  I.  646 

r.  Collings  I.  285,  292,  295  ; 

II.  62 

V.  Duke  of  Marlborough    II.  550 

V.  English  I.  358 

V.  Evans  II.  649 

r.  Gamett  II.  573 

V.  Gibb  II.  573 

V.  Gilbert  II.  132 

V.  Groathcy  II.  168 

V.  Ilarth  I.  447,  508,  .5.30 

r.  Hcagan  II.  546 


Johnson  v.  Johnson  I.  25  ;  II.  152, 154, 410 

V.  Jones  II.  605 

V.  Kennion  I.  192  ;  II.  218 

V.  Kent  II.  609 

T.  Machielsne  II.  319 

V.  Marlborough  II.  577 

V.  Martinus  II.  24,  519 

V.  Mason  II.  489 

V.  Mathews  II.  491 

V.  Meeker  I.  279 

V.  Planters'  Bank  I.  237 

V.  Smith         I.  97,  122;  II.  319, 

628,  629 

V.  State  II.  588 

r.  Thayer  I.  335 

V.  Thompson  II.  1 67 

V.  Titus  I.  205 

r.  Weed      11.150,157,162,217 

V.  White  II.  639,  640,  642 

V.  Wilmarth  II.  127,  137 

V.  Windle     II.  80,  212,  268,  284 

Johnston,  Ex  parte  I.  528,  530 

V.  Brannan  II.  397 

V.  Dickson  I.  218  ;  II.  407 

V.  Searcy  I.  576 

Joiner  v.  Perry  II.  638 

Jolliffe  V.  Collins  I.  20G 

Jolly  V.  Young  I.  384 

Jones,  Ex  parte  II.  410 

V.  Arthur  II.  85 

V.  Ashburnham  I.  196 

V.  Beach  I.  246 

V.  Borden  II.  663 

i;.  Broadhurst  11.72,216,218 

V.  Brooke         I.  229,  326;  II.  458, 

465,  466,  467,  471 

V.  Bullitt  II.  240 

V.  Darch  I.  70,  321 

V.  Deycr  I.  179 

V.  Falcs       I.  46,  368,  393  ;  II.  146, 

298,  309,  516,  540,  541,  578 

».  Fort  I.  361  ;  II.  210,  220 

V.  Godwin  II.  630,  634 

V.  Hays  II.  635 

V.  Hibbcrt  I.  191  ;  II.  44 

T.  Hook  JI.  327,  381,  383 

V.  Ireland  II.  577,  580 

V.  JclTrics  II.  519 

r.  Jones     I.  198,  228  ;  II  479,  6;30, 

631,  662 


INDEX   TO   CASES   CITED. 


Ixis 


Jones  0.  Kennedy 

II. 

151,  218 

V.  Kilgore 

II.  228 

V-  Le  Toinbe 

L  98 

V.  Lewis 

L483 

V.  McLean 

IL411 

V.  Manskei 

L488 

V.  Mars 

IL  480 

V.  Marsh 

IL  492 

V.  Morgan 

L  426;  IL  473,  479 

c.  O'Brien 

I 

615,  618 

V.  Pierce 

IL  137 

V.  Radford 

IL4 

V.  Ransom 

IL  153 

V.  Robinson 

IL  614 

V.  Ryde     IL  37,  38,  101,  184,  185, 

189,  589,  600,  601 

V.  Ryder  IL  573 

V.  Savage      I.  596,  601,  606,  619, 

621,  622;  IL  182,497 

V.  Scott  II.  629,  662 

V.  Simpson  I.  38 

V.  The  State  II.  588 

V.  Swan  II.  493 

V.  Thorn  II.  7 

V.  Turnour  II.  474,  482,  590 

V.  United  States  II.  225 

V.  Warden     L  478,  486,  515,  517, 

531 

V.  Warren  II.  447 

V.  Witter  II.  47,  53 

V.  Yates  I.  134 

Jordaine  v.  Lashbrooke  11.465,469,  471 

Jordan  v.  Bell  I.  662 

V.  James  II.  164 

V.  Jordan  IL  605 

V.  Lewis  II.  414 

V.  M'Kenzie  II.  639 

V.  Neilson  II.  567 

V.  Tarkington  I.  323 

V.  Thornton  IL  455,  634 

V.  Trumbo  L  237;  IL  416 

Jose  V.  Baker  II.  151 

Joseph  E  Coffee,  Steamboat  IL  175 

Joslyn  V.  Smith  IL  658 

Josselyn  v.  Ames  IL  117,  119,  124 

V,  Lacier  I.  43 

V.  Stone  IL  663 

Journeay  v.  Gardner  II.  364 

Joyce  V.  Williams  I.  126 

/oyner  v.  Turner  IL  393,  395,  504 


Judah  V.  Harris  L  46  ;  II.  189 

Judd  V.  Sampson  II.  6.t7 

Jud.son  V.  Corcoran  IL  46 

Judy  V.  Gerard  11.  414,  434 

Julian  V.  Shobrooke  I.  285,  301 

Jungbluth  V.  Way  IL  308 

Juniata  Bank  v.  Hale  I.  364,  445,  503, 
504,  525,  526,  630 

Jury  V.  Barker  II.  146 

Ju.stin  V.  Ballam  II.  170 

Justus  V.  Cooper  IL  570 


K. 


Kaines  v.  Knightly  II.  503 

Kalfus  V.  Watts  I.  38 

Kampshall  v.  Goodman         II.  652,  654 
Kanaga  v.  Taylor  II.  318,  320 

Kane  v.  Cook  II.  639 

V.  Scofield  II.  480 

Karck  v.  Avinger  I.  251 

Kase  V.  John  I.  205 

Kaskaskia  Bridge  Co.  v.  Shannon 

IL  499,  606 

Kasson  v.  Smith  II.  28 

Kauffelt  V.  Bower  II.  176 

Kay  V.  Brookman  II.  480 

V.  Duchesse  de  Pienne  I.  84 

Keaggy  v.  Hite  IL  616 

Kean  v.  Davis  I.  94,  97,   169 

V.  Dufresne  II.  151,  156 

Kearney  v.  King  II.  342 

V.  West  Granada,  &c.  Mining 

Co.  II.  269 

Kcarns  v.  DurcU  II.  49.? 

Kearslake  v.  Morgan        I.  329;  II._  151, 

154,   155,   181,  182,   184,  217,  308 

Kearsley  v.  Cole  I.  241  ;  II.  2iS 

Keating  v.  Price  II.  529 

Keaton  v.  Greenwood  IL  630,  64C 

V.  McGwler  II.  630 

Kceler  v.  Bnrtine  I.  605,  621 

Keene  v.  Beard  II.  58 

V.  Keene  II.  395,  396,  399 

V.  Thompson  IL  38, 101,  186,  189 

Keener  v.  Crull  II.  660,  661 

Keer  v.  Clark  II.  466 

Keeton  v.  Keetoa  11.  635,  637 


Ixx 


INDEX  TO   CASES   CITED. 


Eeir  »    Leemafl  I.  196,  215 

Keith's  Case  II.  587 

Keith  T,.  Jones  I.  46;  II.  189 

V.  Smith  II.  618 

Kellar  v.  Sinton  II.  632 

Kelley  r.  Brown  I.  601  ;  II.  67,  68 

r.  Few  11.515 

V.  Hemmingway  I.  39 

T.  Mayor  of  Brooklyn      I.  44,  164 

Kellogg  V.  Budlong  II.  94 

V.  Hickok  II.  424 

V.  Krauser  II.  46 

V.  Lawrence  I.  302 

T.  Olmsted  II.  528 

Kelly  V.  Ford  I.  255 

V.  Smith  I.  2^0  ;  II.  48 

Kelsey  v.  Oris  wold  II.  642 

V.  Rosborough     11.  153,  154,  161, 

82,218 

Kelso  V.  Frye  II.  538 

Kemble  v.  Lull  I.  304 

v.  Mills  L  550,  552  ;  IL  59,  71,  73 

Kemeys  v.  Richards  I.  127 

Kemp  I'.  Balls  IL  27,  216,  219 

V.  Finden  IL  254 

Kempton  v.  Swift  II.  645 

Kendall  v.  Galvin  I.  193  ;  II.  487 

V.  Robertson  II.  419 

Kendrick  v.  Lomax  I.  662  ;  II.  234 

Kennard  i;.  Knott  11.240,241,242 

Kennebeck  Co.  v.  Augusta  Ins.  & 

Banking  Co.  IL  530 

Kennedy  v.  Geddcs  I.  293,  294 

V.  Lancaster  Co.  Bank    II.  550, 

566,  577 

V.  Manship  IL  604 

V.  Motte  II.  247 

V.  Townsley  II.  663 

v.  Vanwinklo  IL  96 

V.  Woodfolk  IL  167 

Kenner  v.  Creditors  I.  282,  408 

Kennerly  v.  Nash  II.  392,  565 

Kenncrsley  Castle,  The  11.174 

Kennctt  v.  Millbank  II.  652 

Kenningham  v.  Bedford  I.  240 

Kennon  v.  Dickens  II.  425 

V.  M'Uue        L  382,  596,  600,  607, 

610,  622,  623,  625;  li.  439 

Kenny  r.  Collins  II.  167 

Kensington  Bank  r.  Patton  II.  649 


Kent  T.  Lowen 

II.  471,491 

T.  Rogers 

II.  608 

V.  Somervell 

IL  440 

V.  "Walton 

IL  419 

Kenworth  v.  Hopkins 

IL  241 

Keplinger  v.  Griffith 

IL 

479,  486 

Kerr  v.  Webb 

11.611 

Kerrison  v.  Cooke  I.  325 ;  II.  250 

Kershaw  v.  Co.x  IL  563,  570 

Ketchell  v.  Bums     I.  44  ;  II.  119, 130,  132 

Ketchura  v.  Barber  II.  433 

V.  Bank  of  Commerce         II.  37 

Keutgen  v.  Parks  I.  276  ;  IL  279 

Key  V.  Flint  II.  27 

V.  Hill  I.  252 

V.  Knott  II.  107 

Keyes  v.  Moultrie  II.  406,  414 

Kidd  V.  Walker  II .  394 

Kiddall  v.  Trimble  IL  629 

Kiddell  v.  Ford  I  529  ;  II.  245 

V.  Peronneau  I.  447,  530 

Kidson  v.  Dilworth  I.  104 

Kieffer  r.  Ehler  I.  260 

Kiersted  v.  Rogers  II.  439 

Kies  V.  Tifft  IL  138 

Kilbourn  v.  Bradley  II.  420 

Kilgore  v.  Bulkley       L  26,  399,  402,  408, 

466,  471,  473,  474  •  II.  34,  68,  71 

V.  Powers  II.  392,  396 

Kilgour  V.  Finlyson  I.  106 

Kilpatrick  v.  Heaton  IL  244,  245 

Kilsby  V.  Williams  II.  77,  230 

Kilton  V.  Fairclough  I.  481 

Kimbal  v.  Blanc  II.  179 

Kimball  ».  Boston  Athenaeum         11.415 

V.  Cunningham  IL  207 

V.  Fuller  II.  644 

V.  Grover  II.  535 

V.  Huntington  I.  24,  25,  228 

V.  Lamson  II.  545,  578 

V.  Newell  I.  244 

Kimbro  v.  Bullitt  L  133,  138,  139 

V.  Lytic  I.  226 

Kimmcy  v.  Campbell  II.  50 

Kincaid  v.  Iliggins  II.  504 

Kincannon  v.  Carroll  II.  568 

Kitie  I'.  Beaumont  IL  490,  491 

King  t;.  Auglitry  II.  645 

V.  Baldwin  I.  235,  23^  238  ;  II.  2:59. 

244    24.5,  246 


INDEX   TO   CASES   CITED. 


Ixxi 


King  V.  Bicklcy 
V.  Faber 
V.  Fowler 
V.  Gillutt 
V.  Hamilton 
r.  Hoare 
V.  Holmes 
V   Hunt 
V.  Johnson 
V.  King 
V.  Lane 
V.  Lowry 


I.  468,469,471 

I.  129 

II.  46 
II.  235 
II.  ftS9 

I.  249,  251 

I.  372,412 

II.  550,  565 

U.  431 

II.  647 

11.381,  383 

II.  179 


V.  Milsom     I.  51,  184  ;  II.  188,  264, 

283,  480 

V.  Phillips  I.  662 

V.  Smith  I.  201 

V.  State  Bank  I.  237,  239 

V.  Thorn  I.  155,  156,  161  ;  II.  6,  446 

T.  Upton  I.  198 

V.  Walker  II.  324,  634 

The,  V.  Evans  II.  413 

V.  Hampton  II.  584 

V,  Twine  II.  45 

V.  Wendman  II.  45 

Kingdom  v.  .Jones  II.  45 

Kingman  v.  Hotaling  II.  456 

V.  Pierce  I.  230 ;  II.  266 

Kingsbury  v.  Butler  I.  38 

Kingsford  v.  Merry  II.  116 

Kiiigston  V.  Long  I.  43 

V.  Wilson  I.  651 

Kinnear's  Case  L  288 

Kinney  v.  Lee  I.  45  ;  II.  642 

Kinniken  v.  Dulaney  II.  35 

Klinsley  v.  Buchanan  11.  176 

V.  Robinson  I.  537,  542,  544 

Kirby  v.  Marlborough  II.  223,  225 

V.  Sisson  II.  297 

V.  State  II.  588 

V.  Taylor  I.  247,  250 

Kirk  V.  Blurton  I.  135 

V.  Strickwood  I.  215 

Kirkland  v.  Lowe  II.  373 

Kirkpatrick  v.  McCulough  L  46,  47 

V.  Muirhead  I.  224 

Kirksey  v.  Bates  I.  634,  635 

Kirtland  v.  Wanzer  I.  636,  643,  644  ; 

IL  499 
Kirwan  v.  Kirwan  I.  143  ;  II.  201 

Kissam  v.  Burrall  II.  336,  376 


Kitchen  v.  Bartsch  I.  153 

Kittridge  v.  Brown  II.  652 

Klein  v.  Currier  II.  120,  125,  12o 

V.  Keyes  I.  178 

Knapp  V.  Lee  I.  210 

V.  McBrido  I.  128 

V.  Maltby  II.  568 

V.  Parker  II.  121 

Knight  V.  Abbott  II.  622 

V.  Clements  IL  550,  577,  579,  580 

V.  Criddle  II.  92 

V.  Croekford  I.  37 

V.  Hughes  II.  253 

V.  Hunt  I.  216 

r.  Knotts  11.518 

V.  Legh  n.  265,  266,  293 

V.  Packard  II.  470 

V.  Priest  I.  200 

V.  Pugh  I.  188  ;  II.  438 

V.  Wilmington  &   M.  R.  R. 

Co.  L  45 

Knights  u.  Putnam     I.  218;  II.  407,415, 

431 

Knill  V.  Williams  IL  562,  568 

Knotts  V.  Butler  II.  638 

Knowles  v.  Parker  I.  203,  264 

Knox  V.  Light  II.  623 

V.  Reeside  I.  84,  303 

V.  Thompson  II.  618 

Koch   V.  Howell  I.  284 

r.  Melhorn  II.  141 

Kock  V.  Shepherd  II.  634 

Kohler  v.  Smith  II.  395 

Konig  V.  Bayard  I.  313,  318 

Kortright  v.  Cady  11.  624 

Kramer  v.  M'Dowell  I.  482,  487 
V.  Sandford  L  561,  567,  572,  575 

Krebs  v.  O'Grady  I.  8o 

Kritzer  v.  Mills  I.  235,  238 

Krumbhaar  v.  Ludeling  I.  94 

Kufh  V.  Weston  I.  460 

Kunkel  v.  Spooner  II.  4.37,  43S 

Kupfert  V.  Guttenberg  Building  Ass. 

II.  406 

Kurtz  V.  McGuire  IL  607 

Kyle  V.  Bostick  II.  240 

V.  Green  I.  570,  582 

V.  Thompson     I.  358 ;  II.  439,  455 

V.  Wells  IL  628,  654,  661 

Kymer  v.  Suwercropp  II.  173 


Ixxii 


INDEX   TO    CASES    CITED. 


L. 

m 

Lane  v.  Morris 
V.  Mullins 

IL  646 

II.  286 

Labordi-,  v.  Consolidated  Association 

U.  592 

Lacoste  o.  Harper    I.  540,  546,  557,  596, 

601,  604,  619 

V.  Price 
T.  Sharpe 
V.  Steward       I. 
622 

580, 
II. 

585, 
428, 

II.  502 
IL  510 

586,  597, 
498,  516 

Lacy  J?.  Holbrook 
V.  Kinnaston 
*          V.  Kynaston 

L  47 
n.  238 
II.  237 

'Lanfear  v.  Blossmau 
Lang  V.  Brevard 
V.  Fiske 

L45 

;  II.  275 

I.  238 

II.  50 

v.  Woolcott 

n.  583 

V.  Johnson 

II.  507 

Ladd  V.  Baker 

L  251 

V.  Mackenzie 

IL  652 

V.  Kenney 
La  Farge  v.  Herter 

I. 

603,  607 
IL  410 

V,  Smyth 
Langan  v.  Hewett 

II 

.  33, 

34,  114 
I.   141 

Lafittc  V.  Slatter 

I. 

534,  541 

Langdale  v.  Trimmer 

L  514 

Lafond  v.  I^ddock 

II.  635 

Langden  v.  Stokes 

11.  235 

Lagow  V.  Badollet 

n. 

167,  168 

Langdon  v.  Goole 

II.  569 

Laing  v.  Barclay 

I.  661 

V.  Hulls 

n. 

471, 

490, 491 

v.  Lee 

IL  128 

Lange  v.  Kohne 

L47 

V.  Stone 

n. 

393, 

396,  398 

Langliorn  v.  AUnutt 

IL  489 

Lake  v.  Hayes 
v.  Stetson 

II.   25 
IL  123 

Langley  v.  Palmer 
Langston  v.  Corney 

L439 
L301 

Lalandc  v.  Breaux 

II.  411 

Langton  v.  Haynes 

IL  401 

Lamb  v.  Lindsey 

II.  418 

Lanier  v.  McCabe 

I. 

126, 140 

V.  Moberly 

IL 

286,  293 

Lansdowne  v.  Lansdowne 

IL  369 

Lambarde  v.  Older 

IL  611 

Lansing  v.  Gaine    I.  48 

,  125 

146 

148,387 

Lambert,  Ex  parte 

I.  318 

Lanusse  v.  Barker     II. 

336, 

341, 

370,  376 

V.  Ghiselin 

I. 

490, 

491,  628 

V.  Massicot 

L  423 

V.  Oakcs     Y. 

.  25 

482, 

484,  589 

Lapham  v.  Barnes 

I 

233 

;  IL  515 

V.  Pack     II. 

25, 

482, 

484,  589 

V.  Briggs 

II.  G37 

V.  Sandford  I.  229,  326  ;  II.  250 

Lapice  v.  Clifton 

IL  275 

V.  Taylor 
Lambeth  v.  Caldwell 

II.  45 
I.  635 

V.  Smith 
Laporte  v.  L;iiulry       I.  483, 

601, 

11.376 
602,  604, 

V.  Rivarde 
Lamego  v.  Gould 
Lamourieux  v    Hewit 
Lainpley  v.  Weed 

II. 

133, 

II.  256 

II.  413 

138,   139 

II.  622 

Larason  v.  Lambert 
La  Rue  v.  Gilkyson 
Lary  v.  Young          I. 

586, 

II. 

591, 

620 

643,  659 

I.  149 

594;  II. 

Lamprell  v.  Billcricay 
Lamson  v.  PfafT 
Laiiauze  v.  Palmer 
Lancaster  v.  Horrison 

Union 

II. 

I.   163 

291,  303 

II.  491 

L  249 

Las  Caygas  v.  Larionda 
Latapie  v.  Gravier 
Lathrop  v.  Delee 

II. 

516 

1.  CM 

298,  306 

1.  483 

V.  Walsh 

IL  257 

V.  Morris 

1.226 

Lancaster  Bank  r.  Woodward 

I.  272, 

V.  Siiellbaker 

IL  640 

275,  378; 
Land  v.  Cowan 
V.  Lee 

[I:  77,  83 
II.  607 
IL  472 

Latin  v.  Vail 
Liinghlin  v.  Marshall 
Laurence  r.  Hopkins 

1.  210 

I.  26 

II.  649 

Landry  v.  Stansbury 
Lane's  Cu.sc 
Lane  t.  Cotton 

n. 

I.  364 

IL  42.J 

100,  315 

Lavcrty  v.  Buir 

Law  r.  East  India  Co. 

Liiwicy  r.  Hooper 

I. 
II. 

125,  140 
I.  242 

406,  413 

r>.  Doty 

V.  Ironmonger 

II 

.  656 

,  6&8,  659 
II.  210 

Lnwrason  ».  Mason 
Lawrcnci-  v.  Cowles 

I 

29il 

;  II.  134 
IL-IU 

INDEX    TO   CASES   CITED. 


Ixxiii 


Lawrence  v.  Langley  I.  447,  530  ;  II. 

182,  348 

V.  Mangum  II.  651 

r.  Miller  1.486,491 

V.  Ralston     1.611,  622,  626,  643 

Lawsr.  Rand  I.  273;  II.  74 

Lawson  v.  Farmers'  Bunk  I.  499,  511, 

512,  513,  515 


V.  Lawson 
V.  Lovejoy 
V.  Shiffner 

V.  Weston 


II.  56,  61 

I.  73,  74 

I.  516 

186,  258;  II.  255, 


256,  258,  269,  270,  271,  272,  273 

Laxton  v.  Peat    I.  229,  325,  326  ;  II.  239, 

242,  249,  250,  533 


Layct  r.  Gano 

I.  117 

Layton  v.  State 

II.  637 

Lazarus  v.  Cowie 

11.  219 

V.  Shearer 

I    94 

Lazell  V.  Lazcll 

II 

290,  291,  309 

Lea  V.  Branch  Bank 

I.  21 

Leach  v.  Buchanan     I. 

282, 

323  ;  II.  285, 
482,  590,  593 

V.  Hewitt 

L  557,  560 

Leadbitter  v.  Farrow- 

L  102 

Leaf  V.  Gibbs 

L232 

Leake  v.  Burgess 

L  317 

Lean  v.  Schutz 

L  78 

Leapcr  v.  Tatton 

IL  650 

Leaphardt  v.  Sloan 

IL  474 

Lear  v.  Yarnel 

11.417 

Lcavitt  V.  Cowles      II. 

298 

310,  439, 442 

y.  De  Launy 

IL 

406,  413,  414, 
433,  4.34 

V.  Gooch 

II.  647 

V.  Putnam 

L381  ;  II.  13 

V.  Simes        I. 

370, 

373,  385,  395  ; 
IL  348,  491 

Leblcu  V.  Rutherford 

II.  257 

Le  Breton  v.  Miles 

11.  324 

V.  Pierce 

I 

.  223;  11.  Ill 

Le  Chevalier  v.  Lynch 

II.  326 

Lechmcrc  v.  Fletcher 

11.  652 

Lee  V.  Alexander 

II.  574 

V.  Dick 

II.  140 

V.  Jilson 

II.  454 

r.  Levi 

II.  239 

r.  Levy 

II.  239,  245 

V-  Love 

IL  244 

V.  Muggeridge 

I.  79 

Lee  V.  Ncwsam  II.  268 

V.  Oppenheimer  I.  245 

V.  Sewall  II.  162 

V.  Wilcocks     •  II.  370 

Bank  ».  Spencer  L  529,  610 

I  V.  Walbridge  II.  434 

I  Leeds  v.  Lancashire         I.  38,  43  ;  II.  539 

Lc  Fcuvre  v.  Sullivan  II.  364 

Le  Fevre  v.  Lloyd  I.  103 

LcffingwcU  V.  White        I.  384,  395,  588  ; 

II.  516 

Lcftley  V.  Mills  L  358,  392,  410,  41 1, 

415,  417,  Sie,  641,  644  ;  II.  213,  461 

Legg  V.  Ltgg  II.  350 

Legge  V.  Thorpe    I.  534,  535,  538,  540, 

544,  546,  647;  II.  498 

Lcgget*».  Raymond      I.  44  ;  II.  125, 132 

Leghr.  Legh  L336;IL51 

Legro  V.  Staples  I.  38,  335 

Lehman  v.  Jones  I-  440 

Leiher  v.  Goodrich  L  46  ;  II.  1 89 

Lcland  y.  Crcyon  11.132 

V.  Farnham  H-  9 

V.  The  Medora    IL  171,  174,  175, 

180 

Lemon  v.  Dean  H-  475 

Lcnnig  V.  Ralston  L  57,  58,  653,  662 

Lenox  v.  Cook  I.  351  ;  II.  463 

V.  Leverett  L  316  ;  11.497 

?>.  Prout  IL  240,  245,  247 

y.  Roberts  I-SIO 

Lent  r.  Padelford  IL  139,  140 

Leonard  v.  Gary  I.  586,  596 

V.  Hastings  L  590 

V.  Leonard     I.  149,  151  ;  II.  211 

V.  Mason  I.  285 

V.  Smith  II-  502 

y.  Vrcdenburgh  II.  125,  128, 

129, 132 

V.  Wildes       1.  148;  II.  121,  425 

».  Wilkes  11.126 

y.  Wilson  L  65;  II.  17,  560 

Lequeer  v.  Prosser        I.  44  ;  II.  119,  130 

Le  Roux  V.  Brown  II.  326 

Le  Roy  v.  Crowninshield         II.  319,  320, 

326,  360,  369,  383,  385 

Lester  v.  Garland  I-  3^4 

Letcher  v.  Bank  of  the  Commonwealth 

II.  160 
Lett  V.  Morris  I-  336 


Ixxiv 


INDEX   TO    CASES   CITED. 


Levasser  v.  Washburn 
Leveiick  v.  Meigs 
L;  Veux  v.  Berkeley 
Levistoiier.  v.  Marigny 
Lew  V.  Baker 


II.  663 

I.  lO.i 

II.  635 

II.  660 

II.  6 


V.  Bank  of  U.  S.  I.  321  ;  11.99,  195 

V.  Brown  II.  417 

V.  Cavanagh  II.  61 

r.  Drew  1.381 

T.  Merrill  II.  128 

V.  Peters            I.  589,  608,  622,  648  ; 

II.  72 

V.  Pyne  I.  138 

V.  U.  S.  Bank  II.  590 

V.  Wilson  II.  480 

Lewin  v.  Brunetti  I.  313 

Lewis's  Case  11-  585 

Lewis,  Ex  parte  II.  165 

V.  Bakewell  L  502 

V.  Bowen  II.  49 

V.  Bradley  II.  140 

V.  Brewster  II.  137 

r.  Burr  1.401,402 

V.  Cosgrave  I.  205 

V.  Culbertson  II.  608 

r.  Dalryniple  II.  458 

V.  Fullerton  II.  319 

V.  Gompertz  I.  468,  469 

r.  Gray  11.471 

V.  Hanchman  II.  250 

V.  Harbin  II.  51 1 

».  Harvey  11.121,137 

V.  Hodgson  II.  454 

V.  Jones  I.  239,  244;  II.  242 

V.  Kramer        I.  298,  570  ;  II.  551, 

573 

V.  Lee  I.  78 

V.  Manly  II.  151 

r.  Owen         II.  341,  .342,  360,  363 

V.  Parker  I.  255;  II.  9,  493 

V.  Payn  II.  572,  574 

V.  Pctayvin  II.  298,  306 

r.  Keilly  L  145 

V.  Sapio  IL  475,  488 

V.  Splane  IL  258,  298,  305 

V.  Starke  II.  168 

r.  Thatcher  II.  503 

».  Wilson  I.  26 

Lewislon  Kiills  Bunk  r.  Leonard        I.  4H5 

Lcykariff  r.  Ashford  II.  577 


Lichtenthaler  v.  Thompson  I.  242 

Liekbarrow  v.  Mason       II.  11,  34,  80,  21 2 

Light  V.  Leiiiinger  II.  611 

Lightbody  v.  Ontario  Bank       II.  89,  103, 

105,  106,  189,  192,  193 

Lightfoot  V.  Tenant  II.  321 

Lightnerw.  Will  I.  441 

Lighty  V.  Brenner  II.  605 

Lilley  v.  Miller  L  584;  II   71 

Lilly  V.  Hfiys  I.  297 

Lime  Rock  Bank  v.  Macomber        II.  444 

?;.  MallettL235;  11.540 

Lincoln  v.  Bassett  I.  245 

V.  Battelle  IL  381 

V.  Fitch  II.  469 

V.  Smith  I.  94 

Lincoln  Academy  v.  Newhall  II.  385,  637 

Lincoln   &  Kennebec  Bank  v.    Hnmmatt 

I.  369;  II.  516 

V.  Page 
L  369;  11.516 
Lindenbcrger  v.  Beall  I.  478,  515  ; 

II.  491,  492 
Lindo  V.  UnsAvorth  I.  515,  530 

Lindsey  v.  Stevens  II.  225 

Lindus  v.  Bradwell    L  81,  82,  313  ;  II.  3, 

479, 489 

V.  Melrose  L  170 

Linsell  v.  Bonsor  II.  652,  661 

Linton  V.  Wikoff  II.  638 

Lisle  V.  Rogers     I.  276  ;  II.  550,  562,  572 

Litchfield  V.  Falconer  I.  195  ;  II.  513 

Lithgow  V.  Evans  II.  4  6 

r.  Lyon  II.  393,  395,  397 

Littcll  i;.  Hord  11.415 

V.  Marshall  I.  256 

Little  V.  Blunt  II.  383 

V.  Consolidated  Association  of 

Planters  of  La.  11.313 

V.  Downing  II.  634 

V.  Duncan  L  67,  75 

zj.  Dunlop  L  275 

V.  Hale  I.  260 

V.  Nabb  II.  128 

V.  Obricn  I.  202  ;  II.  209,  443 

V.  Phenix  Bank     I.  46,  273  ;  II.  58, 
72,  73,  74 
V.  Rogers  I.  21 

V.  Slnckford  I.  52 

V.  White  II  415 


INDEX   TO   CASES  CITED. 


Ixxv 


Littlefield  v.  Hodge 

II.  147 

V.  Shee 

1.79 

V.  Smith 

II.  5.3 

Littlejohn  v.  Gordon 

II.  6.32 

Littler  v.  Franklin 

II. 

294,  306 

Livennore  v.  Johnson 

II.  6.39 

V.  Rand 

II. 

376,  653 

Livingston  v.  Bird 

11.412 

V.  Harrison 

II.  624 

V.  Hastie  I.  125, 128,  132,  176 

V.  Indianapolis  Ins.  Co.  II.  417 

V.  Radcliff  II.  155 

V.  Roosevelt  I.  125,  126 

Lizardi  v.  Cohen  II.  341 

Llewellyn  v.  Winckworth  I.  92,  101 

Lloyd  V.  Jewell  L  204,  210 

r.  Keach  11.431 

V.  McGarr  I.  662  ;  II.  497 

V.  Maund  II.  660 

V.  Oliver  I.  64 

V.  Sandilands  II.  83,  84 

y.  Scott  IL  406,  412,  413 

V.  Willan  I.  327 

Loaring,  Ex  parte  II.  166 

Lobdell  V.  Baker  II.  39 

V.  Niphler  IL  239,  240 

Lockart  v.  Graham  II.  465 

Lockhard  v.  Avery  II.  517 

Lockwood  V.  Beckwith  II.  607 

V.  Comstock  I.  145,  147 

V.  Crawford  I.  264,  268,  368, 

377,  379,  467,  516,  519  :  II.  248 

V.  Mitehell  II.  410 

Lockyer  ».  Jones  11.91,188 

Lodge  V.  Dicas  II.  201 

V.  Phelps        II.  320,  353,  356,  368 

V.  Spooner  I.  664 

Loftin  V.  Aldridge  II.  651 

V.  Shackelford  II.  605 

Logan  V.  Attix  II.  153 

V.  Bond  I.  131 

V.  Mason  II.  225,  230 

Logs  of  Mahogany  11.169 

Logue  V.  Gillick  II.  624 

V.  Smith  IL  561 

Lomas  v.  Bradshaw  I.  137 

London  v.  Howard  I.  507 

Long  V.  Bailie  II.  212,  291,  292,  295,  296 

V.  Carter  I.  126 

V.  Colburn  I.  99,  121 


Long  V.  Greville  II.  660 

V.  Jameson  II.  651 

V.  Moore  II.  553,  573 

V.  Storie  (9  Hare)  II.  414 

V.  Story  (10  Misso.)      I.  146,  147 

V.  Wharton  II.  413 

Longchamp  v.  Kenny  II.  93 

Longfellow  v.  Andrews  II.  453 

Longley  v.  Griggs  II.  140 

Longridge  v.  Dorville  I.  190,  199 

Lonsdale  v.  Brown     I.  57,  198,  358,  642, 

647  ;  IL  324 

V.  Lafayette  Bank  II.   109 

Loomis  V.  Fay  II.  509,  537 

V.  Pulver  I.  204 

Loose  V.  Loose  I.  604,  621,  623,  624,  625 

Lord  V.  Appleton       I.  489,  494  ;  II.  488, 

492 

».  Chadbourne  1.264,379,519 

V.  Chesebrough  II.  438 

V.  Hall  I.  84  ;  II.  3 

V.  Harvey  IL  652 

v.  Moody  I.  233 

V.  Ocean  Bank        I.  226,  229,  326  ; 

II.  27 

Lord  Cochrane,  The  II.   174 

Loring  v.  Gurney  I.  39 

V.  Sumner  I.  212 

Losee  v.  Dunkin  I.  264,  377 

Lott  V.  De  GrafFenreid  IL  639 

Loud  r.  Merrill  I.  635  ;  IL  492,  499 

Louisiana  Bank  v.  Bank  of  U.  S.  II.  281 

Louisiana  Ins.  Co.  v.   Shamburgh    I.  453 

362 
Louisiana  State  Bank  v.  Ellery        I.  499 
V.  Orleans  Naviga- 
tion Co.    II.  275 
V.  Rowel       I.  483 
Love  V.  Hackett  II.  660 

V.  Nelson  L  404,  408,  411 

Lovejoy  v.  Robinson  II.  619 

V.  Whipple  I.  49 

Lovel  V.  Wartenburgh  I.  396 

Loveland  v.  Shepard  II.  141,  142 

Lovell  V.  Evertson  II.  439,  455 

V.  Hill  I.  24 

I'.  Martin  II.  212,  256,  266 

Lovett  V.  Cornwell  II.  193 

Low  V.  Blodgett  II.  455 

V.  Burrows  I.  255 


Ixxvi 


INDEX   TO    CASES    CITED. 


Low  r.  Chifney 

I 

188 

;  II.  494 

Lyman  v.  Norwich  Univ 

ersity 

IL  657 

V.  Copestake 

II.  439 

Lynch  v.  Bragg 

II.  609 

v.  Howard 

I. 

5S0, 

601, 

605,  606 

V.  Reynolds 

II. 

242,  247 

V.  Tread  well 

IL  527 

Lyon's  Case 

II.  583 

V.  Underhill 

II.  248 

Lyon  V.  Holt                 I 

426, 

427 

;  II.  241 

Lowber  v.  Shaw 

IL  466 

V.  Lyman 

II.  476 

Lowe  V.  Blair 

IL  528 

V.  Marshall 

L34 

V.  London  &  Northwestei 

n 

r.  State  Bank 

11.412 

Railway 

Co 

L  163 

V.  Sundius 

1.305 

V.  Murphy 

L  25 

V.  Williamson 

I. 

310,  435 

V.  Peskett 

II.  441 

Lyons  v.  Miller 

IL37 

V.  Sowell 

II.   658 

Lysaght  v.  Bryant 

I.  504 

V.  Waller 

n. 

408, 

417,  418 

V.  Walker 

IL  226 

Lowell  V.  Daniels 

L  78 

V.  Gage 

II. 

122,   124 

V.  Johnson 

II. 

415,  420 

Lowerv  v.  Scott 

L  492 

M. 

Lowes  V.  Mazzaredo  I.  218  ;  IL  418,  431 
Lowndes  v.  Anderson  II.  42,  44,  93,  269 
V.  Collens         II.  393,  397,  399 
Lowney  v.  Perham  II.  488 

Lowremore  v.  Berry  II-  435 

Lowrey  v.  Murrell     IL  98,  103,  105,  106, 

193 
Lowry  v.  Adams 

V.  Western  Bank 
Loyd  v.  Lee 

V.  Williams 
Lubbering  v.  Kohlbrecher 


Lucas  V.  Dorrien 
V.  Haynes 
V.  Ladew 
Luckey  v.  Peppei 
Luckie  v.  Bushby 
Ludlow  V.  Bingham 
V.  Simond 
V.  Van  Rensselaer 
Ludwick  V.  Huntzingcr 


IL  134 
II.  336 
I.  79 
II.  417 
II.  549,  572, 
574 
IL  34,   116 
IL  263,  266 
L  397,  399,  405,  407 
I.  407 
II.  605 
I.  260 
II.  246 
IL  321,  331 
II.  371,  396 


Luff  V.  Pope 


Lumley  v.  Hudson 

V.  Mu«grave 
V.  Pahner 

Luna  ».  Edmiston 


I.  286,  299,  300,  330,  331  ; 
II.  489 
II.  234 
IL  164,  234,  398 
I.  283,  285 
II.  660 


Lundic  v.  Rol)ertson  I.  596,  014  ;  II.  497 

Luntr.  Adams  1.411,414,418,420 

Luskr.  Smith  1.14.5,148 

Lyle  ».  Murray  11.641 

Lyman  v.  Morse  H-  421 


Maberly  v.  Bank  of  Scotland  II.  314 

jNIcAUester  v.  Spraguo  I.  245,  248 

M'AUister  27.  Reab  L  210 

McAllister  v.  Smith  II.  318,  499 

McAlpin  V.  Wingard  II.  604 

M' Arthur  v.  Bloom  I.  84 

McBride  v.  Gray  II.  651 

Macartney  v  Graham  II.  296,  310 

Macbean  v.  Morrison  I  97 

McCall  V.  Clayton  I.  97 

McCallop  r.  Fluker  L311 

McCann  v.  Lewis  II.  437 

McCartney  v.  State  II.  588 
Macarty  v.  Barrow               I.  351 ;  II.  214 

McCarty  v.  Mewhinney  II.  615 

V.  Roots  I.  223 

McCaskill  y.  Ballard  1.184 

McCasky  v.  Sherman  I.  221 

Maccoun  v.  Atchafalaya  Bank  I.  639 

McClain  v.  Waters  I.  494 

V.  Wiedcmaycr  II.  49 

McCIanaghan  v.  Ilines  II.  504 
McClanc  v.  Fitch         I.  359,  435,  L\6,  642 

M'Clcan  v.  Hertzog  II.  292 

M'Clellan  v.  Clarke  I.  530 

M(^Clintock's  Appeal  II.  645 

M'ClurcTJ.  Bennett  I.  169 

V.  M'Clurc  II.  642 

McClurc  V.  Williams  II.  420 

McCollum  r.  Hinckley  I.  238,  243 

McComb  V.  Kittridgo  I.  240 

McConnol  ».  Thomas  II  450,  452 


INDEX   TO   CASES   CITED. 


Ixxvii 


McConnell  v.  Iloilson  II.  27.5 

V.  Stuttinius  II.  154,  308 

McCoon  V.  Galhi-aith  II.  641 

McCoril  V.  Williams  II.  60G 

M'Cormiik  f.  Trotter  I.  46 

M'Coy  V.  Gilmore  I.  29 

V.  Moss  II.  523,  524 

McCready  v.  Cann  I.  2.16 

MeCrillis  v.  How  I.  68 

M'Cruminen  v.  M'Crummen  I.  483 

McCullodi  ».  Jurlil  11.64  7 

V.  Commercial  Bank        I.  499 

McCuUougli  V.  Henderson  II.  6n4 

V.  Moss         I.  164,  165,  166, 

173 

McCully  r.  Silverburgh  II   609 

McCnrry  v.  McKesson  II.  649 

McDade  1'.  Mead  11.605,610,618 

M'Danie!  v.  Uiv^hcs  II.  387 

McDaniels  v.  Barnum  II.  416 

McDermott  v.  McCormick  II.  480 

M'Doal  V.  Yeomans  II.  133,  142 

McDonald  v.  Bailey  I.  579  ;  II.  348 

V.  Black  II.  612 

V.  Bovington  II.  234 

V.  Harrison  II.  610 

V.  Lee  I.  407 

V.  McGuire  II.  640 

V.  Smith  I.  393;  11.348 

M'Donald  v.  Johns  II.  646 

V.  Magruder  II.  250 

V.  Pickett  11.  222 

McDonnell  v.  Branch  Bank     II.  641,  642 

M'Donough  v.  Goule  II.  24 

McDougald  v.  Dougherty  II.  622 

V.  Rutherford  II.  352 

M'Dowall  V.  Boyd  II.  154 

McDowel  V.  Chambers  I.  22 

McDowell  V.  Bank  II.  246 

V.  Blackstone  Canal  Co.  II.  227 

V.  Cork  1.318 

V.  Goldsmith  II.  9,  629 

M'Dowell  V.  Tyson  II.  609 

McDuffie  V.  Magoon         II.  515,  525,  535 

McElfatrick  v.  Hicks  II.  412 

M'Elmoylo  v.  Cohen  II.  381,  383 

McElroy  v.  Caldwell  II.  545 

McElwcll  V.  Collins  II.  428 

M'Evers  v.  Mason  I.  294  ",  II.  62 

McFadden  r.  Fortier  II.  425 

g* 


IM'Fadden  v.  Maxwell  II.  470,  471 

McFarland  v.  Pico  I.  636,  643 

Macfarlane  v.  Moses  II.  4?5 

Macfcrson  v.  Thoytes  II.  477,  48.3,  48.=5, 

590 

M'Gahey  v.  Alston  II.  304 

McGarr  v.  Lloyd  II.  294 

M'Gee  r.  Donaphan  11.301 

McGee  v.  Prouty  I.  233,  255  ;  II. 

456,  515 

M'Gehce  v.  Greer  II.  602 

McGill  ??.  Ware  11.421 

M'Ginn  v.  Holmes  II.  154,  217 

McGinnes  v.  McGinnes  II.  466,  467 

McGinnis  v.  Allen  II.  612 

M'Ginnis  v.  Hart  II.  406 

McGowen  v.  West  I.  25 

McGrath  v.  Hoopes  II.  457 

McGregor  v.  Cleveland  I.  136 

Macgregor  r.  Rhodes  II.  484 

McGrew  v.  Toulmin  I.  495 
M'Gruder  v.  Bank  of  Washington 

II.  421,  450,  451,  452,  456 

McGuire  v.  Bosworth  II.  121 

M'Guirc  V.  Gadsby  II.  204 

Machell  v.  Kinnear  II.  439 

McHenry  v.  Ridgely  II.  451 

Mclniffe  v.  Wheelock  IL  622 

Macintosh  r.  Haydon  IL  548 

Mclntyrc  v.  Kennedy  II.  153 

V.  Parks  IL  328 

Mackay  v.  Dodge  I.  239 

V.  Holland  L  275 

McKenna  v.  George  I.  244 

McKenney  v.  Whipple  L  310,  430 

M'Kenny  v.  Waller  II.  240 

McKenzic  v.  Durant  I.  310,  411,  414  ; 

II.  461 

p.  Hunt  II.  604 

V.  Nevius  II.  228,  230 

Mackenzie  v.  Scott  I.  105 

McKes.^ion  v.  Stanberry  I.  189 

Mackey  v.  State  II.  588 

Mackic  v.  Cairns  II.  319 

McKiel  V.  Real  Estate  Bank  I.  310 

M'Kim  V.  Marshall  IL  361 

r.  Smith  U.  62 

McKinley  v.  Winston  II.  607 

M'Kinnell  v.  Robinson  I.  214 

McKinncv  r.  Beeson  11.  5>68,  280 


1 


Ixxviii 


INDEX   TO    CASES    CITED. 


M'Kinney  v.  Crawford      I.  264,  268,  377, 

380,  381,  382,  519 

V.  Springer  II.  633 

McKissick  v.  McKissick  II.  327 

McKleroy  v.  Soutliern  Bank  of  Ky. 

II.  482,  484,  600,  602 
McKnight  v.  Lewis  I.  475,  476,  477 

M'Knight  V.  Wheeler  II.  407 

McKown  V.  Whitmore  II.  640 

Mackreth  r.  Symmons  11.167 

M'Lachlan  v.  Evans  II.  94 

Maclae  v.  Sutherland  I.  130,  135,  136 

McLain  v.  Rutherford  I.  393 

M'Lanahan  v.  Brandon  I.  493 

McLaren  v.  Watson  II.  133 

McLean  v.  Jackson  II.  634 

M'Lean  v.  Ragsdale  II.  638 

McLellan  v.  Crofton  II.  647 

McLemore  r.  Cannon  I.  189 

M'Lemore  v.  Powell  I.  240;  II,  239, 

240,  242,  247,  533 
Macleod  v.  Snee  I.  44 

Maclish  !7.  Ekins  IL  110 

M'Lughan  v.  Bovard  II.  181 

McMahan  v.  Breinond  I.  355 

McMenomy  v.  Farrers  I.  335 

r.  Murray  II.  359,  361 

McMicken  v.  Beauchamp  II.  577 

V.  Webb  L  239 

M'Millan  v.  M'Neill  II.  360,  362 

McMillan  v.  Wood  II.  636 

M'Minn  t;  Owen  II.  506 

McMinn  v.  Richmonds  I.  67,  68 

McMurchey  v.  Robinson    I.  374,  384,  643 
M'Murtrie  v.  Jones  I.  490,  494 

McNair  v.  Cooper  II.  530 

V.  Fleming  I.  137 

V.  Gilbert  II.  290,  293 

McNairy  v.  Bell  I.  310 

McNamce  v.  United  States  II.  663 

McNeil  ».  McCamlcy  II.  153 

V.  McCIintock  II.  305 

M'Neilagc  r.  IloUoway       I.  88;  II.  357, 

447 
M'Neill  V.  M'Donald  I.  275 

McPhcrson  r.  Ross  II.  608 

M'Rac  V.  Boast  II.  254 

McRac  V.  Kcnnon  II.  486 

v.lA^ary  IL  651,  652 

M'Rae  r.  Mattoon  II.  350 


McRae  v.  Morrison 
Mactaggart  i".  Watson 
M'Teer  v.  Hunter 
Mc Williams  v.  Mason 
Macy  V.  De  Wolf 
Madden  v.  Burris 
Maddock  v.  Hammett 
V.  Rumball 
Maddocks  v.  Hankey 
Maddo.K  V.  Graham 


II.  298 
L  243 
II.  660 

I.  239 
IL  180 
IL  475 
IL  417 

II.  409 
IL  486 

IL  33,  34.  35 


Madison,  &c.  Plank-Road  Co.  v.  Ste- 
vens IL  503 
Magee  v.  Badger                                II.  278 
V.  Carmack                               II.  105 
V.  Dunbar  I.  502 
Maggs  V.  Ames  I.  244 
Magor  V.  Hammond  I.  62 
Magruder  v.  Goodwyn                       II.  640 
V.  Peter                      IL  167,  168 
v.  State  Bank                    IL  424 
V.  Union  Bank    I.  364,  445,  526 
Mahan  v.  Ross                                   II.  605 
V.  Sherman              I.  137  ;  II.  511 
Maher  v.  Overton  I.  94 
Mahier  v.  Lc  Bliinc                             I.  387 
Mahone  r.  Central  Bank                  II.  C63 
Mahony  v.  Ashlin         L  55,  643  ;  IL  324 
Mahorner  v.  Hooe                              II.  320 
Mahurin  v.  Pearson              I.  237  ;  II.  608 
Maillard  v.  Duke  of  Argyle     II.  154,  186 
Maine  Bank  r.  Butts                II.  412,  421 
V.  Smith                   I.  370,  570 
Mainer  v.  Spurlock     I.  471,  473,  474,  497 
Mainwaring  v.  Newman      I.  137  ;  II.  459 
Makepeace  v.  Harvard  College      II.  146, 

535,  542 

V.  Moore  I.  158 

Malbon  y.  Southard       L  160;  II.  5,  121, 

122 
Malcolm  v.  Scott  I.  336 

Maiden  Bank  v.  Baldwin  I.  439,  440 

Male  V.  Roberts  II.  3.50 

Malin  v.  Malin  II.  574 

Mallet  V.  Thompson  I.  326  ;  II.  250 

Mallory  v.  Grant  II.  138 

V.  Kirwan  I.  507 

Malpas  V.  Clements  II.  487,  663 

Maltby  v.  Cooper  IL  62« 

Manaduc  v.  Kitcbcn  L  182,  487,  489 

Manchester  r.  Malhtwson  IL  ?47 


INDEX    TO    CASES   CITED. 


Ixxix 


Manchester  Bank  v.  Fellows     I.  412,  413, 

414,  482,  483,  484,  510, 

513,  514,  515;  11.462 

V.  White  I.  510 

Mandevillc  v.  Welch  I,  227,  330,  331, 

333,  334  ;  II.  61 

V.  Wilson  II.  648 

Maneely  v.  M'Gee  II.  151 

Manhattan  Co.  v.  Ledyaid  II.  480 

T.  Osgood  II.  421 

V.  Reynold.s         I.  358  ;  II. 

437,  442,  443,  444 

Manhood  v.  Crick  II.  154 

Manion  v.  Titsworth  II.  629,  637 

Maniort  v.  Roberts  II.  50,  449 

Manley  v.  Boycot       I.  234  ;  II.  515,  522, 

525 

Mann  v.  Chandler  I.  99,  102,  169 

V.  King  I.  109 

V.  Lent  I.  186,  203 

V.  Marsh  II.  225 

V.  Moors  I.  486 

Manning  v.  Hays  I.  126,  128,  470 

V.  Shotwell  I.  237 

V.  Westerne  II.  225,  228 

V.  Wheeler  II.  649 

Manrow  v.  Durham      L  44  ;  II.  119,  123, 

125,  129,  130 

Mansfield  v.  Corbin  I.  195 

V.  Ogle  II.  406,  413 

Manson  v.  Fclton  I.  89 

Manufacturers'  Bank  v.  Cole     I.  239  ;  II. 

444, 445 
V.  Winship      I.  132 
Manwaring  v.  Harrison  I.  269,  377 

Marberger  v.  Pott  I.  233,  237,  238 

March?;.  Ward  1.251 

Marchant  v.  Dodgin  II.  415,  420 

Marchiiigton  v.  Vernon  II.  4,  210 

Mardall  v.  Thellusson  II.  612 

Marc  V.  Charles  I.  97  ;  II.  478 

Marfield  ».  Davidson  II.  292 

Margesson  v.  Goble  I.  469 

Margctson  v.  Aitkcn  I.  597,  615 

Marine    Bank   of   the   City  of  New 

York  V.  Clements  II.  478 

Marine  &  Fire  Ins.  Bank  v.  Jauncey 

I.  290,  335 

Mariners'  Bank  v.  Abbott         I.  235,  241, 

246;  II.  519 


Marion,  The  Schooner  II.  170 

Marion  &  M.  R.  R.  Co.  v.  Dillon        I.  63. 

28S 
Marion,  &c.  R.  Co.  v.  Hodge  I.  288 ; 

11.83 

V.  Lomax  I.  288 

Marklc  v.  Hatfield  I.  37,  38,  101,  186, 

189,  190,  192,485.  600 

Marks  v.  Morris  II.  416 

Marlar,  Ex  parte  II.  395,  397 

Marlett  v.  Jackman  I.  143 

Marplc  V.  Myers  II.  634 

Marr  v.  Johnson  I.  490,  504 

V.  Plummer  II.  454 

Marrigan  v.  Page  I.  25 

Manyatts  v.  White  II.  222,  229 

Marseilles  v.  Kenton  II.  647,  649 

Marsh  v.  Barr  I.  498 

».  Day  11.119 

V.  Houlditch  II.  230 

V.  Martindale         II.  412,  420,  422 

T.  Maxwell  I.  517 

V.  Newell  II.  441 

V.  Redder         II.  86,  154,  155,  184 

V.  Putnam  II.  264 

r.  Small  11.275,277,589 

2?.  Turner  II.  167 

Marshall's  Case  II.  585 

Marshall  v.  Aiken  I.  246 

V.  Baltimore  &  Ohio  R.  R. 

Co.  I.  214 

V.  Dallibet  II.  649 

V.  Gougler  II.  553,  555 

V.  Mitchell    I.  568.  570,  589,  611 

V.  Poole  II.  394,  399 

V.  Pyeatt  II.  457 

V.  Button  I.  78 

Marson  v.  Petit  II.  547 

Marston  v.  Allen       I.  49  ;  II.  44,  265,  273 

V.  Brackett  11.  470 

V.  Carter  I.  86 

V.  Forward  I.  188 

Martel  v.  Turcaud  I.  575 

Martendale  v.  Follet         II.  549,  571,  572 

Martin  v.  Bacon  I.  283,  286 

V.  Bank  of  U.  S.     I.  231,  232  ;  II. 

100,  265,  293,  312,  314 

V.  Boure  I.  11 

v.  Chauntry  T.  45 

V.  Boyd  II.  121 


Ixsx 


INDEX   TO    CASES    CITED. 


Martin  v.  Branch   Bank  at  Detroit 

II.  630,  640 
v.  Bridges  II.  661 

V.  Broach  II.  651 

V.  Drahcr  II.  222 

T.  Franklin  I.  663  ;  11.  370 

r.  Hamilton  1.279,309 

V.  Hill  II.  319,  327,  369 

V.  IngersoU  I.  515,  591,  603 

T.  Kirk  I.  146,  147 

V.  Letty  II.  637 

t  V.  Maguire  II.  476 

r.  Martin  11.318,3.34,633 

V.  Mayo  I.  73 

V.  Mechanics'  Bunk  II.  252 

V.  Morgan  11.  71,  77 

V,  Pennock  II.   159 

T.  Strihling  ^   I.  232 

Z>.  Trobridge  11.604 

V.  Walton  I.  147 

V.  Warren  II.  455 

v.  Winslow     I.  264,  377,  379.  380, 
381,  595,  602 
Marvin  v.  Bates  II.  635 

V.  Feeter  II.  409 

r.  McCullum  I.  48 

Marvine  v.  Hymers  I.  164  ;  II.  411, 

421,  433 
Mary,  Sloop  11.413 

Mary  Blanc,  Steamboat,  v.  Beeler    II.  642 
Marzctti  v.  Williams  II.  63,  213 

Mask  V.  Phillcr  II.  652 

Maskcll  V.  Pooley  II.  603 

Mason  v.  Barff  I.  284 

V  Bradley  II.  559,  560,  580 
T.  Croom  II.  623 
».  Franklin  1.351,440,441 
V.  Ilaile  II.  326 
r.  Hunt            I.  286,  292,301,  302, 

305,  329 
V.  Lickbarrow  II.  178 

V.  Morgan  I.  87 

v.  Peters  1.241 

V.  Rumscy  I.  123,  135  ;  II.  477 
V.  Waite  II.  93,  266,  267,  280 

V  Wirkershnm  II.  160,  201 
Mass.  Bank  r.  Oliver  1.501,502 
Master  v.  Miller  (1  An.st.)  II.  36,  581 

V.  Miller  (4  T.  R.  320)         I.  276, 
312,  321  ;  II.  550,  574,  581 


Mrtstcrman  r.  Cowrie 
Masters  v.  Barrets 
V.  Baretto 
V.  Dunn 
r.  Ibberson 
Mather  i-.  Bush 


n.  407 

I.  255;  II.  9 

1.  428  ;  II.  548 

II.  639 

11.  273,  274 

11.361 


V.  Maidstone  II.  283,  493,  593,  600 


II. 


Mathes  v.  Bennett 
Matliew  V.  Slierwell 
Mathews  V.  Aikin 
V.  Fogg 
Matlack  v  Hendrickson 
Matlock  V.  Livingston 
Matossy  v.  Frosh 
Matson  v.  Booth 
Matthews  v.  Coalter 

r.  Griffiths 

V.  Haydon 

V.  Houghton 

V.  Lewis 

V.  Poythress      I.  189,  259,  260  ; 
IL  256,  258,  260,  278 

V.  Redwine  I.  33 

V.  Rutherford  I.  226 

Matthey  c.  Gaily  I   580 

Mauldin  v.  Branch  Bank  I.  126 

Maule  V.  Murray  II.  369 

Mauran  v.  Lamb         II.  84,  209, 220,  436, 

437, 443 


II.  629 

II.  82 

II.  246 

I.  499 

IL  45,  52,  453 

I.  195 

IL  473 

II.  568 

577, 578 

II.  410 

L361 

L  45 

11.413 


Mauri  v.  Hefferman 
Maurin  v.  Perot 
Maury  v.  Ingraham 
Maverick  v.  Salinas 
Mavor  v.  Pyne 
Mawson  v.  Blanc 
Maxcy  v.  Knight 
Maxwell  v.  M'llvoy 
M:iy  V.  Boisseau 

V.  Campbell 

V.  Coffin 

V.  Cooper 

V.  Harvey 

V.  Kelly ' 

r.  Rumncy 

V.  State  Bank 
Maybec  v.  SniflTen 
Maybin  v.  Kirby 
Mayhew  v.  Boyd 

V.  Crickctt 


11.477 

L  436, 437 

IL  434 

II.  634,  635 

II.  631 

L  77 

IL  393 

IL315 

L  471,  609;  11.447 

IL  428 

I  528,  599,  611,  63 1 

L  385,  392 

II.  82 

L  116,  313;  IL  489 

II.  629 

L  656 

IL  552,  577,  578 

II.  46,  47 

I.  238  ;  II.  246 

I.  242;  II.  135,234, 

249   2.53 


INDEX   TO   CASES   CITED. 


Ixxx'i 


Mayhew  v.  Prince 
Kaynard  v.  Johnson 
V.  Nekervis 
llayne  v.  Griswold 
Mayo  V.  Chenoweth 


1.94,  298 

II.  163 

II.  467,  470 

II.  640 

1.33 


Mayor  v.  Johnson        I.  231 ;  II.  100,  294, 

296,  312 

V,  Ripley  I.  247 

of  Alexandria  v.  Patten  II.  224, 225 

of  Ludlow  V.  Charlton  I.  163 

Mazuzan  v.  Mead  II.  429 

Mazagora's  Case  II.  .588 

Meacher  v.  Fort  I.  33,  322  ;  II.  592 

Mead  v.  Carnal  I.  498 

».  Engs  1.509,510 

V.  Small  I.  446,  529,  568,  575  ; 

II.  95 

T.  Steger  II.  502 

V.  Young  II.  4,  212,  479,  584 

Meader  v.  Scott  II.  608 

Meadow  v.  Bird  I.  279 

Meagoe  ».  Simmons  II.  411,  419 

Mears  v.  Graham  I.  28,  169 

Mechanics'   Bank   v.   Bank   of  Columbia 

1.94,95 

&c.  Bank  v.  Compton     I.  497, 

498 

Bank  v.  Earp  I.  104,  105 

V.  Griswold    I.  529,  562, 

566,  632 

V.  Hildreth  I.  146 

V.  Merchants'  Bank 

I.  368,  373 

V.  Minthorne         II.  371 

V.  N.  Y.  &  N.  H.  R.  R. 

Co.     I.  108,  119;  II. 

33,34,35,115,116 

&  Farmers'  Bank  v.  Schuyler 

I.  115,  386;  II.  11 

Bank,  &c.  v.  Townscnd  II.  427 

Mecorney  v.  Stanley  II.  124,  126 

Mecutchen  v.  Kennady  I.  127 

Medbury  v.  Hopkins  II.  3' 8 

Medcalf  r.  Hall  I.  269,  378 

Medway  v.  Needham  II.  319 

Mcdway   Cotton  Manufactory  v.   Adams 

I.  171;  11.451 

Meech  v.  Smith  II.  132 

Meegan  v.  Boyle  II.  634 

Meeker  r.  Jackson  II.  298,  302,  304 

Vol.  L—F 


Mcggadow  V.  Holt  1.  631 

Megginson  v.  Harper     I.  32 ;  II.  64;5,  6.')6 

661 

Meggot  V.  Mills  U.  228,  229 

Meghan  c.  Mills  II.  4  6 

Meigs  V.  Dimock  II.  167 

Melan  ».  Fitzjames  11.310,367 

Melanotte  r.  Teasdale  I.  25 

Mellt'dge  v.  Boston  Iron  Co.      I.  9.i,  167  ; 

II.  151,  152,  158,  176 

Mcllersh  v.  Rippen  I.  474,  47.'5 

Mellish  V.  Rawdon     I.  264,  266,  267,  2G9, 

338,  340,  341,  342,  34.5,  344,  34:; 

V.  Simeon        I.  651,  652  ;  II.  37u 

Mellon  V.  Croghan  I.  311 

Melvill  V.  Glendiiiiiig  I.  239 

Mendenhall  v.  Lenwell  II.  528 

Mendez  v.  Carreroon  I.  358  ;  II.  2-JO 

Mendizabal  v.  Machado  I.  293,  302 

Menendez  r.  Syndics  of  Larionda    II.  29S 

Menkens  v.  Heringhi  I.  82 

Mcnse  v.  Osbern  I.  622,  648 

Mercantile  Bank  v.  Cox  I.  132 

Mercein  v.  Andrus  I.  125 

Mercer  ».  Cheese  II.  151,  154 

V.  Clark  I.  202 

V.  Lancaster  I.  199,  498 

V.  Sayre  II.  94 

r.  Selden  II.  646 

Merchants'  Bank  v.  Birch  I.  .501 

V.  M'Intyre  II.  590 

V.  Rawls  II.  620 

V.  Spalding  II.  90 

V.  Spicer  I.  23,  36  ; 

IL  16,  58,  72,  73 

Meredith  v.  Banks  II.  425 

V.  Duval  II.  358 

Meredith  v.  Hinsdale  II.  363 

V.  Short  I.  227 

Meriam  v.  Rundlett  II.  387 

Meriwether  v.  Bird  II.  602 

Merle  v.  Andrews  II.  641 

Merlin  v.  Manning  II.  49 

Merriam  v.  Granite  Bank  I.  223,  259 

jj.  Walcott      II.  37,  39,  186,  600, 

602 

V.  Wilkins  I.  72 

Merrick  v.  Boury  II.  153,  160,  573 

Merrifield  v.  Cobleigh  II.  444 

Merrill  v.  Smith  II.  50 


Ixxxii 


INDEX   TO    CASES    CITED. 


Merrills  r.  Law 

n.  417 

Miller  V.  Hughes                                 I.  133 

V   Swift 

•      II.  4.53,  45.5 

V.  Hull                                     IL  420 

Merrimack  Co.  Bank  v. 

Brown        I.  241, 

r.  Irvine                                   11.128 

595  ;  II.  223 

V.  Kerr                                     IL  410 

Merriman  v.  Maple 

n.  244 

V.  Lumsden    IL  151,  153,  160,  308 

Merritt  v.  Benton 

II.  433 

V.  McCan                                II.  245 

V.  Ciason 

1.22 

V.  Manice                                  I.  125 

T.  Lincoln 

L237 

V.  Miller         II.  54,  89,  92,  94,  1S8, 

T.  Seaman 

n.  612 

230,  619 

V.  Thompson 

IL  625 

V.  Moore                                  II.  169 

Mertens  v.  Winnington 

L317 

V.  Race      L  120,  256,  258;  IL  88, 

Messenger  c.  Southey 

L  468,  469,  475 

92  110,  111,  112,  113,114,  115, 

Metcalf  V.  Pilclier 

IL  428,  604 

188,  212,  266,   267,   268,    269, 

Metcalfe  v.  Richardson 

L  469,  477,  614 

272,  275,  276,  280,  282,  293 

Meyer  v.  Haworth 

L79 

v.  Reed                            IL  561,  577 

Michael  v.  Myers 

II.  241,  242 

V.  Stem                                    I.  240 

Michigan  Bank  v.  Leavenworth         I.  241 

V.  Stewart                                 I.  239 

Ins.  Co.  V.  Leavenworth      I.  41, 

V.  Thomson                        I.  62,  288 

49,  160,  381  ;  IL  11,  13 

V.  Trevilian                             II.  223 

State  Bank  ». 

Peck            I.  299 

r.  Webb           IL  258,  298,  304,  305 

Mickles  v.  Colvin 

I.  224 

V.  White                                  II  511 

Middlebury  v.  Case 

IL  452 

V.  Williamson                          I.  158 

Middlesex  Husbandmen 

,  &c.  V.  Davis 

Milliken  v.  Brown                               I.  249 

L  228 

V.  Loring                               I.  145 

Middleton  v.  Gill 

II.  399 

Millis  V.  Barber                                  II.  438 

Middletown  Bank  v.  Jerome            II.  493 

Mills 

r.  Bank  of  U.  S.       L  397,  470,  471, 

Miers  v.  Brown 

L  471,  629 

473,  475,  476;  IL  325 

Milburn  v.  Guyther 

IL  605 

I'.  Barber                      I.  187;  II.  494 

Miles  V.  Beriy 

IL  640 

V.  Fowkes        II.  223,  224,  226,  227, 

V.  Gorton 

IL  178 

231,  653 

V.  Hall 

L  489 

V.  Gibson                                    I.  596 

V.  O'Hara 

IL  515 

V.  Kuykendall                              I.  45 

V.  Williams 

II.  3,  45 

V.  Lumpkin                               II.  611 

Milford  r.  Mayor         I 

350;  IL  214,463 

V.  Rouse                                      I.  590 

Millar  V.  Hall" 

IL  359 

TJ.  Safford                            IL  91,  188 

Millaiulon  r.  Anions 

IL  239,  240 

V.  Starr                      II.  549,  552,  573 

Miller  r.  Austen 

I   26 

V.  Taber                                     II.  649 

V.  Berkey 

II.  138 

Miln 

V.  Prest                L  285,  292,  293,  302 

J.  Cohea 

II.  594 

Milne  v.  Graham                        II.  353,  355 

V.  Delamater 

I.  83 

Milncs  V.  Daw.son          I.  178,  191  ;  II.  55 

V.  Edmonston 

11.  532 

Mims  V.  McDowell      I.  243  ;  IL  153,  200 

I'.  Gam  hie 

I   232  ;  IL  525 

r.  Macon  &  W.  R.  R.            IL  168 

V.  Gaston     I.  44 

;  II.  119,  130,  1.33 

Minard  v.  Mead                                     I.  8C 

V.  Gilleland     II. 

550,  551,  556,  577 

Minell  v.  Heed                                     I.  184 

V.  Ilackley     I.  57,  59, 3.50,  351 ,  478, 
482,  596,  598,  607,  610; 
IL  323,  324,  463,  496 
V.  Helm  I.  158 

V.  Hcnnen  J.  488 

r.  Holbrook  II.  528 


Miner  v.  Bank  of  La.  11.314 

Minct  V.  Gibson       L  32  ;  II.  50,  585,  592 
Minklcr  v.  Minkler  II.  661 

Minor  v.  Mechanics'  Bank  I.  252 

Minturn  r.  Fisher     I.  407,  582,  589,  647  ; 

IL  59,  68 


INDEX   TO   CASES    CITED. 


Ixxxiii 


Miranda  v.  City  Bank  I.  482,  591 

Miser  V.  Trovinger    I.  502,  533,  537,  555, 

647 

Mitchell  u.  Baring  1.316,441 

V.  Clay  II.  652,  653 

B.Cross.  1.511,512 

V.  Culver  I.  115;  II.  11 

V.  Dall  II.  222,  223,  225 

V.  Degrand  I.  289,  291,  337, 

352,  384,  509 

V.  Griffith  II.  406 

V.  Johnson  II.  480 

V.  Kingman  I.  149 

V.  McLcmore  II.  64 1 

V.  Ostrom  I.  145 

V,  Reynolds  I.  69 

V.  Rice  II.  440 

V.  Ringgold  II.  552,  566 

V.  Rome  R.  R.  Co.        I.  25,  228 

V.  Scaife  II.  169 

V.  Sellman  II.  607,  650,  651 

Mitcheltree  v.  Veach  II.  645 

Mitchinson  v.  Hewson  I.  85 

Mitford  I'.  Walcot  I.  313 

Mi.x  V.  Madison  Ins.  Co.  11.  378,  407 

V.  Ely  II.  176 

V.  State  Bank  II.  457 

Moakley  v.  Riggs  II.  138,  141 

Mobley  v.  Clark  I.  63,  537,  544 

V.  Ryan  II.  9 

MoffiU  V.  Edwards  I.  39 

Moffatt's  Case  II.  583 

Moffatt  V.  Buchanan  II.  640 

Mogadara  v.  Holt  I.  631  ;  II.  73 

Moggridge  v.  Jones  I.  200,  204 

Mohawk  Bank  v.  Brodcrick     I.  271,  554; 

II.  58,  59,  68,  69,  71,  72 

V.  Corey  I.  222, 226 ;  II.  28 

V.  Van  Home  II.  247 

Moies  V.  Bird    II.  117,  121,  126,  131,  501, 

521 
Moline,  Ex  parte        I.  360,  416,  417,  500, 
516;  II.  213 
Molloy  V.  Delves  I.  113,  290 

Molson  V.  Hawley  II.  27 

Molton  V.  Camroux  I.  150 

Monroe  r.  Hoflf  II.  41,  156 

Montague  v.  Perkins  I.  49,  HI,  114, 

290,  387;  II.  12,  643 
Montgomery  v.  Chadwick  II.  633 


Montgomery  v.  Elliott  1. 310, 430, 431, 432 

Montgomery  Co.  Bank  r.  Albany  City 

Bank  I.  48'  •  ]f.  209 

r.  Marsh  1.490  498 

R.  R.  Co.  i:  Hurst      II.  510, 

558 

Montillet  v,  Duncan  I.  499 

Montpelier  Bank  v.  Dixon  I.  237 

Montross  v.  Clark  II.  27 

Moodie  v.  Morrall  1. 366, 458, 493 ;  II.  245 

Moody  V.  Lcavitt  I.  197 

V.  Mahuria  II.  92 

V.  Rowell  II.  476 

V.  Threlkeld  I.  31 

Moon  V.  Haynic  I.  575 

Moor  V.  Wilhy  I.  283 

Moore  v.  Ayres  II.  498 

V.  Barthrop  II.  85 

V.  Battle  II.  409 

V.  Burr  I.  511,  519 

V.  Butlin  II.  602 

V.  Caldwell  II.  638 

V.  Candell  I.  192 

V.  Coffield  I.  449,  573,  601 

V.  Cooper  I.  99 

V.  Davidson  II.  508 

V.  Denslow  II.  440 

V.  Fall     II.  290,  291,  293,  296,  303 

V.  The  Fashion  II.  170 

V.  Fuller  II.  397 

V.  Greene  II.  639,  640 

V.  Hardcastle  I.  498,  621 

V.  Hardison  II.  659 

V.  Hillebrant  II.  659 

V.  Hylton  II.  414 

V.  Hyman  11.  652,  654,  655 

V.  Leseur  II.  657 

V.  Lobbin  II.  642 

V.  Newbury  II.  170 

V.  Paine  I.  241 

V.  Penn  II.  437 

V.  Tucker  I.  596,  600 

V.  Vance  II.  408 

V.  Waitt  I.  370 

r.  Warren  11.184 

r.  Weir  II.  605 

Mooring  v.  Marine  Dock  &  Mut.  Ins. 

Co.  II.  153,  157 

Moorman  p.  Bank  of  Alabama        I.  475, 

476 


Ixicxiv 


INDEX   TO   CASES   CITED. 


Mordecai  v.  Dawkins  I.  214 

More  V.  Howland  II.  433 

V.  Manning  I.  15 

Moreau  v.  Bank  of  t'ae  State  of  N.  Y. 

II  64 
Morgan  v.  Bank  of  N.  Y.     II.  80,  81 ,  212, 

592,  600 

V.  Bank  of  North  America     I.  606 

V.  Bitzenberger  II.  154,  205 

V.  Creditors  II.  203,  205 

V.  Davison  I.  420 

V.  Jones  I.  43 

».  Lathrop  II.  618 

V.  Reintzel  II.  286 

V.  Richardson  I.  207,  208 

V.  Schermerhom  II.  408,  416 

V.  Towles  I.  351  ;  II.  463 

V.  Van  Ingen  I.  499 

V.  Walton  II.  653 

V.  Woodworth  I.  499 

Morice  v.  Lee  I.  43 

Morisset  v.  King  II.  422 

Morley  v.  Boothby  II.  127 

V.  Culverwell  I.  230 ;  II.  215 

V.  Inglis  II.  005 

Morrell  v.  Dickey  II.  374 

V.  Frith  II.  G53 

Morrill  v.  Brown  II.  89,  92 

V.  Otis  II.  582 

Morris  v.  Edwards         11.  89,  96,  506,  517 

V.  Foreman  I.  358 

V.  Husson  I.  495,  498,  525 

V.Lee  L  21,  24,  43 

V.  Vanderen  II.  572,  576 

T.  Walker  II.  459 

Canal  &  Banking  Co.  v.  Fisher 

II.  33,  34,  115 

Morrison  r.  Bailey         I.  273 ;  II.  59,  68, 

69,  73,  74 

v.  Buchanan      I.  348 ;  II.  285, 

597 

V.  Cnrrio  II.  37,  38,  39,  600 

V.  Jewell  I.  210 

V.  Smith  II.  565 

T.  Stockwcll  II.  440 

r.  Taylor  L  116;  II.  7 

Morrow  v.  Bright  II.  615 

V.  Hanson  II.  639 

Morse  v.  Clayton  I.  1  .">4 

I .  Green  I.  92 


Morse  v.  Hovey  11.  415 

V.  Wilson  II.  423 

T.  Woods  II.  230 

Morton  v.  Navlor         I.  333,  334 ;  II.  489 

r.  Pollard  1.311 

V.  Rogers  I.  188 

V.  Wescott  I.  497 

Moseley  v.  Hanford  II.  508 

Mosely  v.  Graydon  I.  1 58 

Mosher  v.  Allen  II.  357,  453 

Moss  V.  Adams  II.  222,  228 

V.  Hall  II.  245 

V.  Livingston  I.  169,  173 

V.  Moss  I.  249 

V.  Oakley  I.  164 

V.  Rossie  Lead  Mining  Co.       I.  165 

Mossop  V.  Eadon        L  231  ;  II.  289,  296, 

297,302,313 

Hosteller  v.  Bost  I.  275 

Mostyn  v.  Fabrigas  II.  319 

Mott  V.  Burnett  II.  609 

r.  Hicks  L  96,  164,  170 

Motte  V.  Dorrell  II.  417 

Mottram  v.  Mills  I.  358  ;  II.  220, 442,  480 

Mouchet  V.  Cason  II.  560 

Moule  V.  Brown         I.  269  ;  II.  72,  73,  85 

Mountford  v.  Harper  II.  83 

Mountstephen  v.  Brooke  II.  661 

Mount  Vernon  Bank  v.  Holden  I.  478, 482 

Mowbray,   Ex  parte  I.  154  ;  II.  5 

Mowry  r.  Bishop  II.  423 

V.  Cheesman  II.  632 

r.  Todd  II.  50 

Moxon  V.  Pulling  II.  15 

Moyc  V.  Hemdon  II.  572 

Mudd  V.  Harper  II.  638 

v.  Reeves  IL  38,  101,  186,  189,  600 

Muilman  v.  D'Eguino       I.  264,  266,  267, 

268,  338,  339,  340,  341,  344,  485 

Muir  y.  Cross  II.  168 

V.  Rand  II.  94 

Muirhead  r.  Kirkpatrick  II.  619 

Muldon  V.  Whillock  IL  161,  162,  179,  202 

Muldrow  V.  Caldwell  I.  21 

Mulhall  V.  Neville  L  112,  113,  290  ;  II.  12 

Mulherrin  v.  Ilannum  I.  310 

Mullen  V.  French  II.  488 

v.  Morris  II.  323,  377 

Mnllick  V.  Radukisscn       L  264,  266,  267, 

270,  273,  338,  340,  343, 344, 345  ;  IL  7» 


INDEX   TO   CASES   CITED. 


Ixxx^ 


Munn  V.  Baldwin  I.  478  ;  II.  492 

V.  Barnutn  II.  621 

V.  Commission  Co.  I.  164;  II.  41.5, 

427,  428,  433,  .583 

V.  M'Donald  I.  224 

Munroe  v.  Boidier  I.  181,  183 

V.  Cooper        I.  51,  126,  128,  189 

V.  Easton  I.  443 

V.  Perkins  II.  530 

Munson  ;;.  Ciieesboroiigh  II.  266 

Murchie  v.  Cook  II.  530 

Murdoch  v.  Lee  II.  550 

Murdofk  v.  Mills  I.  297,  299 

v.  Union  Bank  of  La.       II.  313 

Murphy  v.  Camden  I.  127 

Murray  v.  Baker  II.  034 

V.  Burling  II.  293 

V.  Carret  II.  298,  308,  312 

V.  De  Rottenham         II.  362,  364 

V.  East  India  Co.  I.  106,  107, 

1.54,  163;  n.  393,  399,  645 

V.  Harding  II.  406 

V.  Judah     I.  229,  273, 326  ;  IL  38, 

58,  68,  71,  72,  73,  74,  437,439,589,  600 

V.  King  II.  137 

V.  Lazarus  II.  174 

V.  Lylburn  II.  46 

V.  Mumford  I.  144 

V.  Pate  II.  94 

Murrill  v.  Handy  I.  29 

Murry  v.  Clayborn  I.  643 

Musgrave  v.  Drake  I.  128 

Musgrove  v.  Mcllroy  I.  99 

Musselman  v.  Oakes  I.  34 

Mussen  v.  Price  II.  154 

Mussey  v.  Beecher  II.  489 

V.  Eagle  Bank    I.  273  ;  II.  75,  76 

Musson  V.  Lake  I.  230,  367,646  ;  II.  286, 

336 
Mutford  V.  Walcot  I.  289 

Myers  v.  Huggins  I.  147 

V.  Irwin  II.  89 

V.  Phillips  L  197 

r.  Scaly  11294,314 

V.  United  States  II.  223 

V.  Welles  IL  160 

r.  York  and  Cumberland  R.  Co. 

II.  34,  50 
ilyrick  v.  Dame  I.  247 

V.  Hasey  IL  53,  136 

h 


N. 


Nabob  of  Arcot  v.  East  India  Co.  II.  35S 
Nagel  V.  Mignot  11.298,301,  30tf 

Naglce  V.  Minturn  II.  608 

V.  Palmer  II.  606 

Nailor  v.  Bowie  I.  442,  470 

Nairn  v.  Prose  II.  168 

Naish,  In  re  II.  413 

Nance  v.  Lary  I.  114 

Napier  v.  Shneider  I.  650 

Narragansett  Bank  v.  Atlantic  Silk 

Co.  L  167 

Nash  V.  Brown  I.  191 

V.  Harrington  I.  380,  382,  396. 

509,  519,   529,   603,   604,  621, 

625,  631 

V.  Hodgson  II.  653,  655,  659 

V.  Nash  I.  87 

V.  Skinner  11.  121 

r.   Tupper        IL  327,  368,  381,  384 

Nason  v.  McCulloch  IL  607 

Nathan  v.  Giles  IL  390 

National  Bank  v.  Eliot  Bank      IL  61,  62 

V.  Norton  L  146,  147 

Naylor  v.  Moody  I.  237 

Nazro  v.  Fuller  I.  276 ;  IL  548 

Neal  V.  Erving  I.  92 

Neale  v.  Reid  IL  225 

V.  Turton  I.  137 

Nedham's  Case  I.  162 

Nelson,  The  II.  173 

Nelson  v.  Bostwick  II.  140 

V.  Carmel  II.  393 

V.  Cowing  I.  183 

V.  Dubois  IL  129,  131 

V.  Fotterall     L  347,  641  ;  IL  329 

V.  Serle  L  196  ;  IL  6 

V.  Whitall  IL  480 

Nerot  V.  Wallace  I.  215 

Ncsom  V.  D'Armond  II.  662 

Nestor,  Brig  IL  170,  171,  175,  180 

Nettcrville  v.  Stevens  II.  211 

Nettles  V.  Huggins  II.  615 

Neve  V.  Hollands  II.  657 

Nevill  V.  Hancock  II.  457 

Nevins  v.  DeGrand  II.  570 

Ncvison  r.  Whitby  II.  412 

New  V.  Swain  11.  165,  166 

Newall  V.  Hussey  IL  152 


Ixxxvi 


INDEX   TO   CASES    CITED. 


Newbury  r.  Armstrong 

II. 

128 

Newcomb  v.  Raynor 

II. 

244 

Ncwcombe  v.  Leavitt 

II. 

630 

Newell  V.  Fisher 

I. 

198 

V.  Hamer 

I. 

240 

V.  May  berry 

II. 

572 

V.  Salmons 

II. 

608 

V.  Willianas 

n. 

519 

New  England  Bank  ».  Lewis  I.  411,  413  ; 

II.  462 

Newhall  v.  Clark  I.  304,  305 

V.  Dunlap  I.  94 

V.  Vargas  II.  178 

New  Haven  County  Bank  v.  Mitchell 

II.  491,  496 
New  Hope  D.  B.  Co.  v.  Perry  I.  310, 

311,  430 
N.  H.  Savings  Bank  v.  Colcord        I.  241, 

242 

r.  Ela       1.241;  II. 

245 

Newland  v.  Oakley  I.  109 

Newlin  v.  Duncan  II.  654 

Newman  v.  Goza  I.  650 

V.  Kettelle  II.  643 

V.  Williams         II.  427,  428,  431 

Newmarch  v.  Clay  II.  228,  229 

New  Orleans  Bank  v.  Harper   I.  539,  540, 

557,  596,  601,  604,  619 

&  C.  Railroad  Co.  v. 

Armstrong  II.  258 

Canal,  &c.  Co.  v.  Barrow 

I.  483,  498 
17.  Briggs 

1.498 
V.  Kerr 

I.  501 
V.  Robert 

1.498 
&c.  R.  Co.  V.  Patton 

I.  483,  498 

Newsom  v.  Thighin  II.  521 

Newton  v.  Jackson  II.  527 

N.  Y.  F.  Ins.  Co.  ».  Bennett  1.126 

Firemen  Ins.  Co.  v.  Ely       II.  412, 

414,  421 

V.  Sturges         II. 

411,  421 

Floating  Derrick  Co.  v.  New 

Jersey  Oil  Co.  I.  164 


New  York  Marbled  Iron  "Works  v.  Smith 

I.  221 
State  Bank  r.  Fletcher  II.  162 
&  Virginia,  &c.  Bank  v. 

Gibson      1.189,291,330, 

332 

Nichol  V.  Bate  I.  222,  490 

V.  Green  I.  107 

Nicholas  v.  Krebs  II.  504 

Nicholls  V.  Bowes  I.  305,  428,  429 

V.  Diamond  I.  98 

V.  Dowding  II.  481,  656 

v.  Webb        I.  634,  635,  643  ;  II. 

495,  499 

Nichols  V.  Cheairs  II.  200 

V.  Davis  I.  45 

V.  Fearson  II.  406,  429,  431 

V.  Goldsmith  I.  436  ;  II.  495 

V.  Holgate  II.  469 

V.  Johnson  II.  574,  577 

V.  Lee  II.  414 

v.  McDowell  I.  237 

v.  Norris        L  229,  241,  326  ;  IL 

248,  249,  250,  533 

V.  Parsons  I.  240;  II.  515 

r.  Pool  L  309,  311,432 

V.  State  Bank  I.  107 

X.  Tuck  II.  619 

Nicholson  v.  Chapman  II.  264,  265 

V.  Gouthit  I.  374,  446,  528, 

529,  530,  556,  629 

V.  Marders  I.  497,  498 

V.  Patton     L  189,  258:  II.  275, 

276,  280 

V.  Revill  I.  248  ;  II.  237 

Nickerson  v.  Howard  I.  200 

Nicolct  V.  Gloyd  I.  557 

Nicolls  V.  Rodgers  II.  385,  632 

Niemcewicz  v.  Bartlett  II.  659 

Nightingale  i'.  Ailams  II.  634 

r.  Withington  I.  66,  70; 

II.  3 

Nimick  v.  Martin  I.  405,  406 

Nimmo  v.  Stewart  II.  629 

Ni.sbct  V.  Smith  II.  242 

Nixon  T.  Palmer  T.  101,  115 

Noble  V.  Bank  of  Kentucky  I.  509 

V.  M'Ciintock  L  127 

T.  Smith  I.  178 

r.  Walker  II.  4  !(.,  .128 


INDEX    TO    CASES    CITED. 


Ixxxvii 


Noe  V.  I  lodges  II.  507 

Noel  V.  Murray  II.  40,  41 ,  152, 156, 162,  163 

Noke  V.  Iiigliani  I.  249 

Noliind  V.  Kinggold  II.  45,  52 

Nolasco  V.  Lurty  II.  630 

Xolte  V.  Creditors  II.  239 

Noonan  v.  Gray  II.  233 

Norris  r.  Aylett  II.  232 

V.  Badger  I.  358  ;  II.  220,  442 

V.  Cnimmey  II.  240,  533 

V.  Laiiglcy  I.  279 

V.  Salomonson  I.  614 

V.  Slaughter  II.  630 

North  V.  Brig  Eagle  II.  171 

V.  Wakefield  I.  249 

North  Bank  v.  Abbot         I.  31 1,  369,  370, 

432,  439 

Northampton  Bank  v.  Balliet  II.  36 

V.  Pepoon  I.  171, 172; 

II.  8,  220 

Northcut  V.  Wilkinson  II.  659 

Northern  Bank  v.  Farmers'  Bank     I.  231, 

232;  II.  100,313,  314 

of  Ky.  V.  Lcverich         11. 

298,  307 

North  River  Bank  v.  Ay  mar  I.  108 

Northrop  v.  Sanborn  I.  29 

Norton  v.  Coons  I.  244 

V.  Eastman  II.  135 

V.  Ellam  I.  375  ;  II.  643,  644 

V.  Lewis  I.  394,  587 

V.  Pickering  I.  555 

V.  Seymour  I,  136 

V.  Soule  I.  245 

V.  Waite  I.  221 

Norwich  Bank  v.  Hyde  I.  28  ;  II.  12 

Nostra  Scnora  del  Carmine,  Tlie     II.  173 

Nott  V.  Beard  I.  367,  422,  497,  646 

V.  Douming  I.  502 

Novelll  V.  Rossi  I.  328  ;  II.,  29 

Noyes  i*.  Evans  II.  513 

V.  Hall  II.  648 

V.  Price  II.  93 

Nugent  V.  Roland  L  29 

Nunnery  v.  Cotton  II.  572 

Nye  r,  Moseley  I.  214 


O. 

Oakeley  v.  Pasheller 
Oakes  v.  Mitchell 
Oakey  v.  Beauvais 

V.  Wilcox 
Oakley  v.  Boorman 
Obliard  v.  Bctham 
O'Brien  v.  Davis 
V.  Sauls 
O'Caliaghan  v.  Thomond 


II.  201 

II.  659 

I.  366,  422 

II.  548 

II.  1.30 

I.  41,  204.  208 

II.  469 

II.  437 

II.  3.53,  357 


Ocean  Tow-Boat  Co.  v.  Ship  Ophelia 

II.  86,  162 


Odam  V.  Beard 

Odell  V  Dana 

Odiorne  v.  Howard 
V.  Maxcy 
V.  Sargent 

Odlin  V.  Grcenleaf 

Offit  V.  Vick 

Offut  V.  Stout 

Offutt  1'.  Ayres 

Ogden  v.  Astor 

r.  Coddington 
V.  Cowley 


II   510 

II.  406 

I.  264;  II.  470 

I.  100 

n.  149 

I.  243  ;  II.  639 

I.  57,  622 

I.  401 

I.  99 

II.  647 

II.  C06 

I.  457,  478,  489  ; 

II.  492 

V.  Dobbin  I.  436,  506,  514 

V.  Saunders    II.  323,  346,  359,  360, 

363,  364,  372,  381,  589 

r.  Slade  I.  47 

Ogilby  V.  Wallace  II.  455 

Ogle  V.  Graham  II.  549,  565,  566 

Oglesby  v.  Steamboat         I.  596,  598,  622 

Ohio  Ins.  Co.  v.  Edmondson    II.  320,  327 

V.  Nunemacher  II.  622 

O'Keefe  v.  Dunn  I.  337 

O'Keson  v.  Barclay  I.  196 

Okie  V.  Spencer  I.  241  ;  II.  150,  155, 

184,  244,  245,  246 

Olcott  V.  Rathbone     II.  86,  164,  203,  204, 

437, 439, 443 

D.  Tioga  R.  R.  II.  636 

Oldham  v.  Bcngan  II.  244 

Olendorf  v.  Swartz  I.  610 

Oliver  V.  Bank  of  Tennessee     I.  537,  540 

V.  Gray  II.  661 

D.  Oliver  II.  392 

Olmstead  v.  Greenly  11   132 

Oneale  v.  Long  II.  558 

Onondaga  Co.  Bank  v.  Bates    I.  640,  641 


Ixxxviii 


INDEX    TO    CASES   CITED. 


Ontario  Bank  v.  Lightbody  II.  192 

».  Petrie  1.401,476 

V.  Schermerhorn        II.  433 

V.  Worthington  I.  224, 

285,  293,  294 

Orcutt  V.  Berrett  II.  661 

Old  V.  Portal  II.  439 

Ordiorne  ».  Woodnnan  II.  603 

Orear  r.  McDonald     I.  443,  446,  529,  538, 

539,  540,  5-12,  543,  545,  548 

Oridge  v.  Sherborne  I.  374,  407 

Oriental  Bank  v.  Blake       I.  364,  501,  526 

Ornie  v.  Young  I.  237,  238,  239  ;  II. 

245,  247 

Ormsby  z).  Kendall  I.  122 

Orr  V.  Laccy  (2  Doug.  Mich.)         II.  470 

V.  Lacy  (4  McLean)  II.  434 

V  Maginnis         L  337,  534,  535,  548, 

642,  644,  647  ;  IL  250 

V.  Union  Bank  I.  80,  109,  597 

Orvis  V.  Kimball  I.  74 

V.  Newell  I.  235 

Ory  V.  Winter  II.  326,  338,  342,  343, 

358,  375 

Osborn  v.  Hawley  II.  133,  147 

V.  Moncure  L  411  ;  II.  461 

Osborne  v.  Fulton  II.  96 

V.  Smith     I.  401,402;  II.  68,  71 

Ossulston  V.  Yarmouth  II.  423,  424 

Oswego  Bank  v.  Knower  I.  587 

Otis  V.  Adams  I.  254 

V.  Barton  I.  309 

V.  Hus.scy  I  595,  601,  621 

r.  Lindsay  II.  424 

Otsego  Co.  Bank  v.  Warren  I.  362, 

595,  620,  636,  646 

Oulds  V.  Ilarri.son  II.  604 

Outhwaite  v.  Luntiey     II.  550,  551,  568 

Overton  v.  Tyler  II.  148 

0'.ven  V.  Arrington  II.  437 

V.  Barrow  11.  209 

V.  Iloman  I.  241 

».  Lavine  I.  45,  303 

V.  Moody   I.  158;  II.  357,  373,  374 

r.  The  State  II.  588 

V.  Van  Uster  I.  312 

Owens  V.  ('oliinson  I.  250 

Owenson  r.  Morse        11.  41,  91,  105,  154, 

157,  166,  178,  184,  186,  191,  192 

Owings  r.  Grubbs  I.  94 


O.xford  Bank  v.  Davis  I.  337 

V.  Haynes     L  238;  II.  117, 

119,  137 

V.  Lewis      L  241  ;  IL  241, 

242,  245,  246,  250,  533 

Oyster  i;.  Longnecker  II.  417 


Pabodie  v.  King  I.  241  ;  IL  528,  533 

Pacific  Bank  v.  Mitchell  IL  219 

Pack  V.  Alexander  1.  481 

V.  Thomas       I.  273;  IL  61,  74,  507 

Packard  v.  Tiie  Louisa  II.  175 

■c.  Lyon  I.  424,  459 

V.  Nye  1.  99 

V.  Richardson  II.  128,  409 

Paff  V.  Kinney  II.  629 

Pagan  v.  Wylie  II.  597 

Page  V.  Cable  IL  368 

T.  Green  IL  456 

V.  Hubbard       IL  151,  153,  172,  180 

V.  Lathrop  I.  255  ;  IL  456,  489 

V.  Mann  II.  480 

V.  Newman  II.  392 

V.  Page  IL  298,  304,  305,  372 

V.  Prentice  I.  493 

V.  Thomas  II.  465 

V.  Warner  I.  655 

V.  Webster  L  237,  439 

Paige  V.  Cagwin  II.  472 

V.  Stone  L  93,  100,  117 

Pain  V.  Packard  I.  235,  237,  238  ; 

II.  243,  248 

Paine  v.  Edseil  IL  550,  577 

V.  Pritcliard  II.  394 

T.  Strand  Union  I.  163 

Palethorp  v.  Furnish  IL  661 

Palfrey  v.  Baker  II.  164 

Palmer's  Case  II.  585 

Paltrier  r.  Andrews  IL  655 

r.  Baker  IL  410 

V.  Dodge  L  146,  147 

r.  Grant  L  2.33,  247  ;   (I.  119,  520 

V.  Hughes  I.  311 

V.  Jannaiu  II.  43 

r.  Logan        II.  294,  304,  305,  306 

V.  Manning  II.  477 


INDEX    TO   CASES   CITED. 


Ixxxii 


Palmer  v.  Pratt 

V.  Ricliards 

V.  Stephens      I. 

V.  Yarrington 
Panama,  Sliip 
Pankey  v.  Mitchell 
Pannell  v.  M'Mehen 
Papot  V.  Trowell 
Paragon,  The 
Parchman  v.  McKinney 
Parham  v.  Murphee 
Parish  v.  Stone  I.  178, 1 
Park  V.  Page  I. 

Parke  v.  Ijowrie 
V.  Smith 
Parker  v.  Ade 

V.  Bigelow 

V.  Burgess 

V.  Carter 

r.  Greele 

V.  Cousins 

V.  Gordon 

r.  Hanson 

V.  Hutchinson 

V,  Jackson 

V.  Kendall 

V.  Kennedy 

r.  Leigh 

V,  McKelvain 

r.  Macomber 

T.  Marston 

V.  Phillips 

V.  Riddle 

V.  Ramsbottom 

V.  Sanborn 

V.  Tottcn 

r.  Tuttle 

V.  United  States 

Parkes's  Case 

Parkhurst  v.  Dickcrson 

Parkin  v.  Moon 

Parks  V.  Brinkerhoff 
r.  Brown 
V.  Duke 
V.  Edge 
V.  Ingram 

Parnell  v.  Price 


I.  39 

II.  43,  44,  265 

23,  36,  122,  247  ; 

II.  474 

II.  318 

11.411 

II.  549 

II.  248 

II.  634 

II.  170 

II.  226 

II.  444 

79,211  ;  11.44,55 

411,414,  418,  420 

I.  643 

II.  470 

II.  473 

II.  403 

I.  125 

I.  197 
I.  294,  296 

I.  135,  146,  147; 

II.  200,421,  422 
I.  306,  418,  478; 

II.  100,  492 
II.  467,  470 
II.  394 
II.  639,  646 
II.  603,  610 

I.  26 
I.  324,  326 

II.  141 

I.  146,  147 

II.  54 
I.  144 

II.  45,  120 
II.  409 
II.  642 
II.  438 

I.  264  ;  II.  9 
II.  460 
II.  584 

I.  300 

II.  9 
II.  131 

II.  439 
I.  26 

;  II.  473 

229,  326 

I.  240 


1.426 
I. 


Parnther  v.  Gaitskell  II.  63-» 

Parr  v.  Eiiason  I.  218;  II.  415,  431 

V.  Johnston  II.  583 

Parris  v.  Cobb  II.  64 1 

Parry  v.  Nicholson  II.  550,  577,  579 

Parsons  v.  Gaylord  I.  200 

V.  Gloucester  Bank  II.  238 

V.  Phipps  II.  470,  471 

Partridge  v.  Badger  I.  299 

V.  Bank  of  England    II.  34,  1 1 5 

V.  Coll)y  II.  125,  558 

V.  Court  I.  155 

V.  Davis      I.  22;  II.  14,  16,  18, 

132,  136 

II.  393 


Parvin  v.  Hoopcs 
Pasmore  v.  North 
Patch  ».  King 
Pate  V.  Gray 
V.  M'Clure 


I.  41,  42 

II.  658 

II.  392,  393,  607,  609 

I.  596,  601,  603,  607, 

621 

Pateman's  Case  II.  584 

Paterson  v.  Hardacre     I.  51,  186  ;  11.265, 

280,  292,  293,  493 

V.  Zachariah  I.  148 

Bank  v.  Butler  I.  491,  499 

Patience  v.  Townley  I.  460,  531 


Paton  V.  Coit 

V.  Winter 


I.  312,  352 


Patrick  ».  Beazley 

V.  Clay 
Patridge  v.  Strange 
Pattce  V.  Grccly 
Patterson  v.  Becker 

V.  Chalmers 

V.  Choate 

V.  Cobb 

V.  Johnson 

V.  Poindcxter 

V.  Todd 

r.  Vose 
Pattison  v.  Hull 
Patton  V.  Ash 

V.  Bank  of  So.  Car. 
V.  Nicholson 


1.279 
II.  550, 
564,  565 
1.483 
II.  393 
11.45 
1.213 
I.  596,603,614,647 
II.  179 


II.  658 

II.  649 

II.  1G7 

1.26 

1.381  ;  II.  121 
II.  498 

I.  334  ;  II.  224 
II.  159 
n.  314 
1.216 


T.  State  Bank    I.  231  ;  II.  100,  266, 
291,  294,  312 
I.  601 
1.468,  469,  477 
II.  620 


h* 


V.  Wilmot 
Paul  V.  Joel 
Paup  r.  Drew 


sc 


INDEX   TO   CASES    CITED. 


Pawling  V.  Pawling  11.  425 

Payne  r.  Bensley  I.  223,  224 

V.  Clark  I.  28 

r.  Commercial  Bank     II.  246,  533 

V.  Cutler  I.  222 

r.  Ladue  11.512,531 

r.  Trezevant  II.  418 

V.  Winn  I.  643  ;  II.  329 

Paysant  v.  Ware  II.  502,  514 

Payson  v.  Whitcomb  I.  309 

Peabody  v.  Beach  II.  609 

V.  Denton  II.  298,  306,  307 

V.  Harvey  I.  612 

V.  Peters  II.  604 

Peace  v.  Head  II.  298,  304 

Peach  V.  Kay  I.  283 

Peacock's  Case  II.  585 

Peacock  v.  Banks  II.  372,  376 

V.  Rhodes  1.280;  II.  19,  20, 

111,  114,  269,  280,  480 

Peake  v.  Dorwin  I.  235  ;  II.  246 

Pearce  v.  Austin  11.  436,  437,  438 

V.  Creswick  11.  294,  297 

V.  Davis  II.  83,  85 

Pearl  v.  M'Dowell  I.  151 

Pearsall  v.  D wight  11.  318,  319,  320, 

321,  358,  368,  382 

Pearson  v.  Bailey  II  416,  418 

V.  Bank  of  the  Metropolis  I.  424  ; 

II.  514,  516 

n  Crallan  I.  478,  479,  480 

v.  Darrington  11.611,651,654, 

656,  661 

V.  Duckham  I.  509 

V.  Garrett  I.  39 

V.  Hutchison  II.  213 

r.  M'Gowraa  11.417 

V.  Parker  I.  243 

V.  Pearson  I.  178 

Pease,  Ex  parte  II.  43 

T.  Dwight  II.  570 

V.  Hirst     II.  52,  219,  231,  448,  659 

V.  Morgan  II.  480 

Pcaslcc  V.  K.jbl.ins  I.  151  ;  II.  6,  482 

Peck  V.  Boisford  II.  659 

r.  Cochran  I.  300 

V.  Ilihbnrd  II.  362 

V.  Ilozier  II.  367 

r.  Maynard  I.  260 

».  Mayo  II.  326,  337,  371,  372 


Peck  V.  Randall 

II.  646 

Pecker  v.  Sawyer 

n.  469 

Pedder  v.  Mac  Master      II.  359, 

367,  369 

Peden  v.  Moore 

I.  209 

Peebles  v.  Gee 

II.  228 

Peer  v.  Humphrey 

II.  279 

Peet  V.  Zanders 

I.  492 

Peirce  v.  Butler 

1.369 

;  n.  516 

V.  Pendar 

I. 

482,  487 

V.  Rowe 

II.  425 

Pemberton  v.  Oakes 

II.  230 

Pendergrast  v.  Foley 

II. 

640,  646 

Penkivil  v.  Connell 

I.  170 

Penley  v.  Waterhouse 

II.  628 

Penn  v.  Watson 

II.  647 

Penniman  v.  Hartshorn 

II.  535 

V.  Meigs 

II. 

360,  362 

Pennington  v.  Gittings 

I.  197 

Pennock  v.  Freeman 

n.  640 

Penny,  Succession  of 

II.  483 

V.  Corwithe 

11.  577 

V.  Graves 

II.  509 

V.  Innes 

11.25 

V.  Parham 

II.  121 

Peniiypackcr  v.  Umberger 

II.  469 

Pentz  V.  Stanton 

I.  93,  94,  96 

People  V.  Baker 

U.  83,  85 

r.  Brigham 

II.  583 

V.  Call 

n 

560,  565 

V.  Chadwick 

II.  588 

V.  Clarke 

II.  663 

j;.  County  of  New  York 

II.  397 

V.  Dubois 

II.  621 

V.  Fitch 

II.  585 

V.  Getchell 

II.  586 

V.  Hoag 

II.  586 

V.  Ilolbrook 

II.  292 

V.  Howell 

II.  40,  8;?,  159 

V.  Jaiiscn 

I.  246 

;  11.  246 

V.  Spooner 

11.477 

V.  Stewart 

II.  588 

i;.  Thorns 

II.  588 

r.  Van  Rensselaer 

II.  663 

Peoria,  &C.R  Co.r.NciU 

1.321 

;  11.  482, 
609 

Pepoon  V.  Stagg              I 

24,  25 

;   11.  562 

Peppen  v.  Peytavin 

I.  45 

Percival  r.  Frampton 

1    188, 

221,  223; 
II.  49-1 

Perfect  V.  Musgravo 

I 

J34,  250 

INDEX   TO   CASES    CITED. 


XCl 


Perham  v.  Raynal  II.  656,  658,  661 

Perkins  v.  Cartmell  II.  630,  640 

V.  Catliii      II.  120.  121,  1.31,  142, 

519.  520,  521 

V.  Cliallis  I.  260 

r.  Clements  II.  447 

V.  Commonwealth  II.  588 

V.  Franklin  Bank         I.  400,  407, 

408 

».  Oilman  II.  .533 

V.  Goodmaa  .  II.  233 

V.  Hawkins  II.  609 

V.  Kent  II.  254 

Per  Lee  v.  Onderdonk  II.  234 

Parley  v.  Balch  I.  205 

Perreira  v.  Jopp  I.  59 

Perrin  v.  Broadwell  II.  244 

V.  Keene  I.  145 

V.  Noyes  I.  189  ;  II.  438,  493 

Perring  v.  Hone  I.  136  ;  II.  561 

Perry  v.  Barret  II.  118,  121 

r.  Crammond  I.  49 

V.  Green         I.  264,  379,  380,  519, 

562 

V.  Harrington  I.  304 

T.  Jackson  JI.  636 

V.  Jones  II.  45 

V.  Lewis  n.  633 

V.  Roberts  II.  616 

Persons  v.  Jones  IT.  640,  642 

V.  McKibbin  II.  606 

Peter  v.  Beverly  II.  154 

Peters  v.  Anderson  II.  222,  225,  227, 

228,  229 

V.  Brown  II.  661 

V.  Soame  II.  45 

Peterson  v.  EUicott  11.  660 

V.  Willing  IL  501 

Petit  V.  Benson  I.  282,  312 

Peto  V.  Reynolds  I.  61,  62,  289 

Petre  v.  Duncombe  I.  243 

Petrie  v.  Clark  I.  224 

Pettee  v.  Trout    I.  253,  255  ;  11.  437,  443, 

604,  609,  611 

Pettis  v.  Westlake  II.  9,  1 0 

Petty  t».  Hi\nnum  I.  191 

Peyroux  v.  Dubertrand  I.  499 

r  Howard  11.  170,  171,  175 

Peyton  v.  Bladwell  I.  214 

V.  Hallctt  I.  334 


Ffiel  V.  Vanbatenberg 

I. 

230  ;  II.  220, 
221,  48e 

Pliares  v.  Walters 

n.  63? 

Pliaup  V.  Stratton 

n.  478 

Phcbe,  The 

IL  170 

Phelps  V.  Decker 

L  210 

V.  Foot 

II.  22,  536 

V.  Johnson 

II.  154 

V.  Phelps 

L  86,  87 

V.  Pierson 

11.416 

V.  Stewart 

II.  650 

V.  Williamson 

IL  650 

Philadelphia  Bank  v.  Newkirk              I.  38 

Loan  Co.  v.  Towner  II.  318, 
410 
&  Sunbury  R.  R.  Co.  v. 
Lewis  II.  405 


Philips  V.  Astling        I. 

361, 

366  i  IL  137, 
139 

V.  M'Curdy 

L  508,  601 

V.  Peters 

n.  654,  661 

V.  State 

IL  629 

Phillips  V.  Alderson 

I.  487,  490 

V.  Allan 

II.  360,  363 

V.  Blake          11.  91 

,  97,  151    188, 

189,  192 

V.  Cage 

IL  648 

V.  Cockayne 

IL  410 

V.  Cole 

IL  472 

V.  Ford 

IL  101,  189 

V.  Franklin 

IL  399 

V.  Frost 

I.  282 

V.  Gould 

I. 

468,  469,  477 

V.  Hunter    II. 

326, 

360,  387,  388 

V.  Lawrence 

II.  606 

V.  Lee 

IL  164 

V.  Longstreth 

IL  502 

V.  Merrimack 

Mut. 

F.  Ins. 

Co. 

IL51 

V.  Poindexter 

1.  639 

V.  Pope 

IL  628,  630 

V.  Preston 

IL  517 

V.  Rodie 

IL  169 

V.  Stagg 

L  336 

V.  State 

IL  587 

V.  Wan-en 

IL  487,  488 

Philliskirk  v.  Pluckwell  L  87,  88  ;  II.  446 

Philpot  V.  Briant       II 

239, 

240,  247,  533 

Philpott  V.  Bryant      I 

337, 

427,  438,  642 

V.  Jones  II.  22 

4,225 

,  227, 232,  653 

ICll 


INDEX   TO    CASES    CITED. 


Phipps  3.  B&iier  II.  475 

V.  Chase  I.  493,  494 

V.  Tanner  I.  29 

Phipson  V.  Kneller        I.  582,  589 ;  II.  516 

Phoenix  Bank  v.  Hussey    I.  57,  314,  642  ; 

n.  324 

Piatt  V.  Eads  I.  374,  394 

Pickard  v.  Bankes  U.  93,  189,  191 

V.  Valentine   I.  393,  404  ;  11. 348, 

644 

Pickering  v.  Banks  II.  420 

V.  Marsh  I.  229,  326 

V.  Pickering  I.  196 

Pickett  V.  Land  I.  237 

Pickin  V.  Graham  I.  596,  601 

Picquet  v.  Curtis         I.  255,  311,  358  ;  11. 

220,  456,  480,  488,  644 

Pidcock  V.  Bishop  I.  236 

Pierce  v.  Gate  I.  413,  450,  516 

V.  Drake  II.  159 

V.  Dustin  II.  615 

V.  Fothergill  II.  393 

V.  Hoffman  11.  605 

V.  Kennedy  11.  121 

V.  Read  II.  357 

V.  Struthers  I.  492 

r.  Whitney    I.  424,  434,  442,  610  ; 

II.  508 

Pierson  v.  Dunlop      I.  286,  292,  293,  301, 

302;  II.  218 

V.  Hooker  I.  621 

V.  Hutchinson        II.  84,  294,  296, 

299,  308 

».  "Wallace  11.91,92 

Piggot's  Case  II.  575 

Pike  V.  Ledwell  II.  409 

V.  Street  II.  24,  522 

Pilie  V.  Mollere  I.  29 

Pilkington  v.  Woods  II.  456 

Pillaiis  V.  Van  Microp       I.  176,  183,  296, 

292 
Pillard  v.  Darts  II.  244 

Pillow  V.  Hardeman  I.  501 

Pinchain  v.  Collard  II.  167,  168 

Pinckney  i'.  Keylcr  II.  608 

Pindall  v.  Bank  of  Marietta  II.  223 

V.  Northwestern  Bank  II.  101, 189 
Pindcr  r.  Nathan  I.  508 

Pine  V.  Smith  I.  263,  417 

Pincr  i;.  Clary  I.  381 


Pinkerton  v.  Bailey  II.  9 

Pinkham  v.  Macy      I.  470,  471,  477,  516, 

643 

Pinkney  v.  Hall  I.  312  ;  U.  478 

Pinney  v.  Bugbee  I.  248,  250 

Pintard  v.  Davis  I.  237 

r.  Tackington     11.  151,  160,  290, 

291,  293,  308 

Pipe  V.  Steele  II.  465,  488 

Pipkin  V.  Hewlett  II.  645 

Pitcher  v.  Barrows  I.  137  ;  II.  440 

Pitman  v.  Kintner  I.  170 

Pitt  V.  Ghappelow  I.  321  ;  II.  482 

V.  Purssord  I.  243  ;  II.  253 

V.  Smith  I.  151 

Pittam  V.  Foster  II.  657 

Pitts  V,  Holmes  11.  448,  605,  637 

V.  Keyser  I.  358  ;  II.  442 

V.  Wooten  II.  659 

Planche  v.  Fletcher  II.  321 

Planters'  Bank  v.  Bivingsville  Manuf. 

Go,  II.  434 

V.  Bradford  I.  494 

V.  Mark  ham  I.  419 

v.  Sellmaa  II.  533 

V.  Sharp  I.  164 

r.  Snodgrass    11.412,422 

v.  Stockman  II.  228 

r.  White  I.  501 

Piatt  P.  Drake  I.  471,  477,  643 

V.  Smith  II.  542 

Playfair  v.  Cooper  II.  629 

Plcts  V.  Johnson       I.  32  ;  II.  50,  585,  592 

Plumcr's  Case  II.  491 

Poagc  V.  State  II.  584 

Pocock  V.  Billing  II.  472 

Poe  V.  Duck  II.  364 

Pogue  V.  Joyner  II.  466 

Poiricr  v.  Morris         I.  183,  221,  223  ;  II. 

43,  443 

Pole  V.  Ford  II.  234 

Poiglass  V.  Oliver        11.  91,  188,  189,  620 

Polhiil  V.  Walter  I.  121,  313 

Polk  V.  Allen  II.  644 

Pollard  r.  Baylors  II.  414 

V.  Ilcrries  I.  652  ;  II.  355 

v.  Scholy  11.410 

V.  Yoder  1 1.  393 

Pomeroy  r.  Ainsworth    II.  319,  320.  377, 

405,  41M 


INDEX  TO   GASES   CITED. 


XCIU 


Pomeroy  v.  Slade 
Pomroy  v.  Rice 
Pond  V.  Lockwood 
V.  Underwood 
V.  Willidms 
Ponder  v.  Carter 
Pons  I'.  Kelly 


I.  98 
n. 151,  205 

I.  221 

II.  83 
I.  248 ;  II.  653 

II.  638 
I.  507,  529,  544 


Ponsonby  v.  Nicholson  I.  394 

Pool  V.  McCrary  II.  146 

».  Kelfe  11.649,651,656 

Poole  V.  Dicas  I.  515,  641 

V.  Palmer  II.  465,  488 

V.  Smith  II.  286,  296,  303,  309 

V.  Tolleson  I.  381,  382,  520 

V.  Tumbridge  I.  415 

Pooley  V.  Harradine  I.  229,  234  ;  II. 

502,  533 

V.  Millard  II.  309 

Poor  V.  Hazelton  I.  86,  88 

Pope  V.  Askew  II.  477 

V.  Bowman  II.  638 

V.  Luff  n.  62 

V.  Nance  U.  200,  598 

V.  Nickerson  II.  320 

V.  Risley  II.  639 

Popham  V.  Aylesbury  II.  188 

Poplewell  V.  AVilson  I.  195 

Popley  V.  Ashly  11.41,155 

Porche  v.  LeBlanc  II.  619 

Portas  V.  Paimboeuf  II.  495 

Porter  r.  Boyle  I.  482 

V.  Cumings  U.  478,  480 

V.  Doby  II.  553 

V.  Hill  II.  649 

V.  Ingrahara  II.  458 

V.  Judson  I.  459 

T.  McCollum  I.  26  ;  II.  35 

V.  Nash  II.  298,  301 

V.  Palsgrave  II.  399 

r.  Pierce  11.  537,  538 

r.  Talcott  11.156,218 

Porthouse  v.  Parker  I.  321,  502,  523, 

524  ;  II.  478,  482,  590 

Portland  Bank  v.  Brown  II.  228 

Portsmouth  Livery  Co.  v.  Watson    II.  358 

Posey  V.  Decatur  Bank  L  368 ;  II.  297, 301 

Post's  Case  II.  586 

Post  ».  Bank  of  Utica  IL416 

Postmaster- General  v.  Furber        II.  223, 

228,  230 


Postmaster-General  v.  Norvell  II.  223,  227 

Potez  f.  Glossop  II.  663 

Pottr.  Clegg  11.653 

Potter  V.  Brown        II.  319,  326,  336,  343, 

346,  347,  359,  367 

T,  Pearson  I.  12 

T.  Rayworth  I.  596,  610,  614, 

618;  II.  497 

D.Tyler  1.21,275 

V.  Yale  College  II.  409 

Potts  V.  Read  II.  22 

Powell  r.  The  Commonwealth        II.  584 

V.  Divett  II.  546,  573 

V.  Eason  I.  243 

V.  Ford  XL  475,  488 

V.  Guy  II.  393 

V.  Hogue  II.  609 

r.  Jones  I.  283 

V.  Monnier  I.  283,  286,  293 

V.  Roach      II.  215,  216,  287,  292, 

296 

V.  Thomas  IL  121 

V.  Waters   L  49,  388  ;  IL  28,  243, 

245,  247,  419,  420,  427,  445, 

459,  470,  471 

Powers  V.  Ball  I.  280 

V.  Central  Bank  II.  605 

V.  Fitzhugh  n.  301 

V.  Lynch      IL  326,  336,  346,  347, 

348 

V.  Nash  I.  244 

V.  Nelson  I.  262 

Powles  V.  Page  I.  503 

Poydras  v.  Delamare  I.  330,  332,  334 

Prather  v.  Ross  II.  636 

Pratt  V.  Adams  II.  40S 

r.  Foote  11.164,203 

».  Guiick  11.531,538 

V.  Hubbard  II.  636 

V.  Menkens  IL  605 

V.  Thomas  II.  45,  52,  120 

V.  Willey  IL  408 

Pratte  v.  Hanly  I.  596,  648 

Prentice  r.  Zane  I.  224,  261 

Prentiss  v.  Danielson  I.  563,  568 

r.  Graves  L  224 

y.  Savage     IL  319,  336,  346,  347 

Presbrey  v.  Williams    I.  384,  385 ;  II.  642 

Prescott,  Ex  parte  I.  336 

V.  Brinsley  II.  444 


XCIV 


INDEX    TO    CASES    CITED. 


Prescoft  V.  Everts  II.  622 

T.  Flinn  I.  100,  107 

V.  Johnsou  II.  494 

V.  Hull  II.  53 

Bank  v.  Caverly  I.  79,  338, 

340,  342,  345  ;  II.  484,  490,  519,  589 


Presley  v.  Davis 
Preston  v.  Daysson 
V.  Jackson 
V.  Perton 
V.  Strutton 


11.  629,  630 

I.  491 

1.217;  II.  418,420 

II.  154 

II.  605 


Prestwick  v.  Marshall  (7  Bing.)  I.  81 

Prestwich  v.  Marshall  (4  Car.  &  P.)   II.  3, 

489 

Prettyman  v.  Short  II.  37 

Prevost  V.  Gratz  II.  576 

Prewett  v.  Buckingham  II.  630 

Prewitt  V.  Chapman  I.  33 

Price  v.  Cannon  II.  217 

V.  Dunlap  II.  290,  293,  298,  304,  443 

».  Edmunds       1.229,2.34,239,241, 

326;  II.  239,  241,  249,  250 

r.  Mitchell  I.  307,  428 

».  Neal    I.  321  ;  II.  38,  81,  99,  195, 

196,  269,  285,  482,  590,  598,  599 

r.  Page  I.  651  ;  II.  372 

r.  Perry  II.  502 

».  Price     II.  151,  154,  182,  183,  289, 

291,  295,  296,  308 


r.  Shute 
r.  Tallman 
V.  Torrington 
V.  Young 
Priddy  V.  Ilenhrey 
Prideaux  v.  Collier 
r.  Webber 
Pridgcn  v.  Andrews 

V.  Hill 
Priestley  v.  Bisland 
Primrose  v.  Anderson 
Prince  v.  Brunatte 

V.  Ilcylin 
Prinp  t;.  Cliirkson 
Pringle  v.  Phillips 
Printup  I'.  Miti-heil 
Prior  V.  Ilmnlirow 
Pritchard  v.  Chandler 
V.  Howell 
V.  Scott 
Proctor  V.  Mather 


1.312;  II.  550 

II.  577 

II.  495 

I.  364,  525 

I.  194 

I.  338,  592,  593 

II.  633 

II.  396 

II.  647 

I.  497 

II.  421 

J.  81,  .321 

II.  628 

1.245;  IT.  246,  5.33 

I.  258;  II.  275,  277 

II.  580 

I.  2.50 

11   637 

II.  381,  6.30,  649 

I.  483 

II.  1.53,  161 


Proctor  T.  Moore  II.  326 

V.  Webber  I.  97 

Prosser  ».  Edmonds  II.  45 

Pryor  i;.  Ryburn  II.  636 

V.  Wright  I.  310,  434 

Puckford  V.  Maxwell  I.  351  ;  II.  87,  105, 

154,  155,  186,  214 

Puget  de  Bras  r.  Forbes  I.  182 

Pugh  V.  Bussel  II.  359 

V.  Dui-fee  I.  221 

Pullen  V.  Chase  II.  393 

V.  Hutchinson  II.  578 

V.  Shaw  II.  579 

Pulliam  V.  Owen  II.  616 

T.  Withers  II.  557,  565 

Pulsifier  v.  Hotchkiss  I.  209 

Purchase  v.  Mattison  I.  584  ;  II.  72 

Purdon  v.  Purdon  II.  656 

Purdy  V.  Austin  II.  649 

Putnam  v.  Dike  II.  384,  385 

V.  Lewis  II.  154,  161 

r.  Sullivan  1.  110,280,  449; 

II.  6,  11,  584 


Q. 

Quackenbush  v.  Leonard 
Quantock  v.  England 
Quarles  v.  Brannon 
Queen,  The,  r.  Kinnear 
Quetiin  v.  Masson 
Quiniby  v.  BuzzcU 
V.  Putnam 
Quin  V.  Keefe 
Quince  v.  Callcnder 
Quinsigamond  Bank  v.  Hobbs 
Quynn  v.  Carroll 


B. 


11, 


n.  412 

IL  631 
414,  420 
I.  28d 
II.  360 
IL  475 
n.  659 
II.  341,  359 
IL  377 
IL  421 
IL  660 


Raborg  v.  Bank  of  Columbia  I.  397 

V.  Peyton  I.  282,  323 

Rackham  v.  Marriott  II.  648 

Racklcy  v.  Pcarco  II.  222,  225 

Radley  v.  Manning  11.  418 

Raggett  V.  Axmorr  1.  32J 


INDEX   TO    CASES    CITED. 


XCV 


Rahm  v.  Philadelpliia  Bank  I.  435 

Raigauel  v.  Ayliff  I.  45 

Railsback  v.  Liberty,  &c.  Turnpike  Co. 

II.  503 
Raitt  V.  Mitchell  II.  165,  169,  171 

Ralli  V.  Dennistoun  II.  564 

V.  Sarell  I.  301 

Ralston  v.  Bullitts      I.  534,  537,  554,  590 
Ramdulollday  v.  Darieux  I.  554 

Ramsay  v.  Allegre  II.  170,  171,  174 

Ramsbotham  v.  Cator  II.  43 

Ramsdale  v.  Horton  II.  37,  101,  189, 

190,  600 

Ramsdell  v.  Morgan  I.  276 

».  Soule  11.152,410 

Ramsey  v.  Anderson  II.  450 

Ramuz  ».  Crowe  11.291,292,296 

Ran  V.  Latham  II.  437 

Rand  v.  Hubbard  L  158,  161  ;  IL  5 

V.  Reynolds  L  496,  497 

Randall's  Case  IL  567,  583 

Randall  v.  Moon  11.  458 

V.  Parramore  II.  222,  227 

Randleson,  Ex  parte  IL  231 

Randoll  v.  Bell  IL  445 

Randolph  v.  Cook  I.  410 

V.  Parish  I.  62 

Randon  v.  Toby  11.  655 

Ranelaugh  v.  Champant  II.  319 

V.  Champante        IL  319,  376 

Ranger  v.  Gary         I.  255,  256,  264,  266, 

278,  377,  378,  380 

Rangier  v.  Morton  II.  151 

Ranken  v.  Deforest  I.  93 

Rankin  v.  Blackwcll         11.  549,  577,  579 

Ranson  v.  Mack         I.  401,  402,  470,  472, 

475,  476,  482,  484,491,  498 

V.  Sherwood        II.  120,  139,  142 

Rape  V.  Wcstcott  II.  555 

Rapelye  v.  Anderson       II.  428,  429,  433 

Raper  v.  Birkbeck       I.  291,  328  ;  II.  29, 

564,  570,  574,  593 

Raphael  v.  Bank  of  England    I.  258  ;  II. 

257,  272,  274,  280 

Ratcliff  V.  Planters'  Bank  II.  565 

Rathbon  v.  Budlong  I.  94,  97 

Rathbone  r.  Warren  II.  245,  246 

Rawdon  v.  Redfield  I.  490 

Rawlinson  v.  Stone        I.  78,  79,  157 ;  II. 

5,374 


Rawson  v.  Copland 

IL6H 

V.  Walker 

II. 

506,  521 

Rawstone  v.  Parr 

L247 

Ray  V.  McMillan 

IL  428 

Raymond  r.  Baar 

IL 

102,  190 

V.  Johnson 

II.  373 

V.  Merchant 

IL  308 

V.  Roberts 

II.  502 

V.  Sellick              I 

.179;  n.  55 

Rayner  v.  Grote 

L  118 

Rea  V.  Dorrance 

I.  556 

Read  v.  Bank  of  Kentucky 

I. 

633  ;  IL 
329 

V.  Brookman 

n. 

287,  574 

V.  Cummings 

1.204 

V.  Gutts 

I. 

238,  251 

V.  Gamble 

IL  292 

V.  Hull  of  a  New  Brig 

IL  170 

V.  Marsh 

L  294 

V.  Upton 

IL  218 

V.  Wheeler 

L25 

V.  Wilkinson     I.  301,  537,  595,  597, 

608 
Reading  v.  Weston  II.  415 

Reakert  v.  Sanford  I.  83 

Real  Estate  Bank  v.  Bizzell       I.  638  ;  II. 

499 

Reaame  v.  Chambers  II.  634 

Reay  t'.  Packwood  II.  467 

Reculist's  Case  IL  583 

Reddel  v.  Dobree  II.  56 

Reddick  v.  Jones         I.  221  ;  11.  333,  348 

Reddish  v.  Watson  I.  240 

Redmayne  v.  Burton  II.  313 

Reed  V.  Akin  II.  620 

V.  Batchelder  I.  67,  72 

V.  Boardman  II.  222,  2S;1 

r.  Goale  II.  405,  41 -.i 

V.  Deere  II.  568 

V.  Evans  II.  1 23 

V.  Gamble  II.  473 

V.  Minell  II.  640,  646 

V.  Prentiss  I.  205,  209 

V.  Reed  II.  425 

V.  Roark  L  22  ;  IL  546,  566 

V.  Shaw  II.  532 

V.  Smith  II.  420 

V  Upton  n.  151 

V.  Vancleve  II.  472 

V.  White  n.  155,  179,  199 


xcvi 


INDEX   TO   CASES   CITED. 


Reed  r.  Wliitney  11.  608 

V.  Wood  II.  513 

Reeder  v.  Anderson  II.  264 

Reedy  r.  Seixas  I.  466,  470,  475,  476 

Rees  V.  Berrington      I.  239,  246  ;  II.  240, 

245 

V.  Headfort  L  186  ;  II.  493 

V.  Overbaugh  II.  574 

V.  Warwick  I.  286 

Reese  v.  Abbot  I.  251 

Reeside  v.  Knox  I.  44 

Regina  v.  Coulson  11.  586 

r.  Dawson  II.  586 

V.  Hawkes  I.  61,  289 

V.  Hodgson  n.  587 

V.  Keith  II.  587 

V.  Kinnear  I.  288 

V.  Smith  I.  62 

V.  Taylor  11.  69 

V.  Turpin  11.  82 

v.  Wilson  I.  113 

T.  Winterbottom         I.  159  ;  II.  6 

Reid  V.  Dickons  11.  660,  662 

V.  Fumival  I.  192;  II.  218 

V.  Morrison  I.  450, 451,  453,  557,  558 

T.  Payne  I.  498 

V.  Reid  11.  71 

Reimsdyk  r.  Kane  II.  359 

Rclf  V.  Bank  of  Mobile  II.  607 

Remer  r.  Downer  1.471,475,497 

Rcmick  v.  O'Kyle  I.  310 

Remington  v.  Harrington  I.  482 

Renew  v.  Axton  II.  642 

Renner  v.  Bank  of  Columbia    I.  397  ;  II. 

298,  307,  309,  310,  325,  421,  516,  517 

Rensbaw  v.  Triplett  I.  478,  504 

Rensselaer  Glass  Factory  v.  Reid     II.  395 

Ronwick  v.  Williams  11.  29,  604 

Reuter  v.  Electric  Telegraph  Co.       I.  163 

Hew  r.  Barber  11.156 

V.  Pettet  I.  98  ;  II.  660 

Rex  V.  Bigg  I.  163  ;  II.  18,  584 

V.  Birkett  II.  584,  586 

r.  Bollond  II.  585 

V.  Box  I.  35 

r.  Buiko  II.  584 

r.  Cator  II.  477 

r.  Dunn  II.  585 

V.  p:iliot  I.  29 

e.  Fauntleroj  II.  210 


Rex  r.  Francis 

II.  585 

V.  Goodrich 

11.  210 

V.  Hales 

II.  584 

V.  Hart 

I.  113 

V.  Holden 

II.  585 

V.  Hunter 

I.  62 

V.  Inh.  of  Hard  wick 

II.  656 

V.  Marshall 

II.  585 

V.  Palmer 

II.  585 

V.  Parkes 

II.  584 

V.  Pateman 

II.  584 

V.  Peacock 

II.  585 

V.  Plumer 

11.491 

V.  Post 

II.  586 

V.  Randall 

n. 

567,  583 

V.  Reculist 

II.  583 

V.  Richards 

II. 

567,  583 

V.  Shukard 

n.  586 

V.  Taylor 

n.  585 

v.  Teague 

II. 

583,  566 

V.  Treble 

II 

547,  585 

V.  Tuft 

II.  585 

T.  Vincent 

II.  210 

V.  Watson 

II.  491 

17.  Watts 

II.  585 

T.  Webb 

II.  585 

V.  Wilson 

IT.  583 

V.  Yates 

II.  58 

Reynolds  v.  Chettle  I.  186,  362,  365,  420  ; 

II.  72 

V.  Clayton  II.  408 

V.  Douglass  I.  595  ;  II.  139 

V.  Doyle  II.  6.18 

i;.  French  II.  266,  298,  309 

V.  Lansford  II.  631 

V.  M'Farlane  II.  222 

V.  Peto  I.  61 

V.  Ward      I.  240,  241  ;  II.  240, 

533 

Rhctt  V.  Poe        I.  502,  524,  537,  544,  545, 

548;  II.  137,  139 

Rhodes,  Ex  parte  11.  16 

T.  Gent  I.  308,  329 

V.  Moselcy  II.  292 

V.  Smethurst  II.  646 

Rhoads  v.  Frederick  II  533 

Ribbans  v.  Crickett  II  231 

Rice  V.  Goddard  I.  204,  210 

V.  Gove  I.  99 

V.  Ilogan  I.  57,  6-ia 


'     INDEX   TO    CASKS    CITED. 


XCVll 


Rice  V.  Maxwell 

1.216 

V.  Morton 

I.  246 

V.  Porter 

L44 

V.  llagland 

IL  521 

V.  Rice 

1.243 

V.  Stearns 

L  17 

V.  Wesson 

I.  265,  382,  520 

V.  Wilder 

IL  654 

V.  Wright 

II.  233 

Hi<h  V.  Duprce 

IL  655 

V.  Hathaway 

n.  125,  137 

V.  Lambert 

IL  170 

V.  Topping 

IL  408,  466,  469 

Hichards's  Case 

IL  567,  583 

V.  Bickley 

II.  381 

V.  Brown 

IL  413 

V.  Frankum 

IL  474 

■0.  Griffin 

IL  467 

V.  Milsington 

L  307,  428 

V.  Richards    I 

88,  89  ;  IL  357, 

392,  447 

V.  Thomas 

IL  501 

Richardson  v.  Allan 

IL  467 

V.  Brown 

IL  406 

V.  Dingle 

IL  518 

I'.  Fcnner 

IL  437 

V.  French 

L  124 

r.  Gower 

II.  446 

V.  Jackson 

II.  625 

V.  Lincoln 

L  50  ;  IL  442 

V.  Martyr 

L45 

V.  Parker 

IL611,612 

V.  Richardson                II.  634 

V.  Scobee 

IL  427 

V,  Strong 

L  149 

Richie  v.  McCoy  I.  544,  548,  550 

V.  Moore  II.  30 

Richman  v.  Richman  IL  639 

Richmond  v.  Fagua  IL  652 

V.  Heapy  I.  133 

Richmond  Manuf.  Co.  v.  Davis       II.  559 

Richter  v.  Selin     I.  41,  590,  595,  596,  607 

Ricketson  v.  Wood  II.  244 

Ricketts  v.  Pendleton  I.  639 ;  IL  499 

V.  Toulmin  I.  626 

Rickford  v.  Ridge  IL  72,  73,  85 

Ricord  v.  Bettenham  I.  152 

Riddle  v.  Bowman  I.  243,  244 

V.  Moss  IL  467 

Ridgway  v.  Day  I.  582  ;  II.  534 

Vol.  l.—  G  i 


Ridley  r.  Blackett  IL  216 

V.  Taylor  I.  127  ;  IL  465,  478 

Ridout  V.  Bristow  1.  195,  198,  227  ;  II.  6, 

523,  524 

Rieman  v.  Fisher  II.  39 

Rigby,  Ex  parte  IL  82 

V.  Norwood  IL  128 

Riggs  V.  City  of  St.  Louis  I.  659 

V.  Lindsay  I.  650 

V.  Waldo  IL  121,  129 

Righter  v.  Stall  II.  228 

Riley  v.  Anderson  I.  221 

V.  Dickens  I.  28 

V.  Gerrish  IL  519,  520 

V.  Johnson  I.  221 

Rindge  v.  Breck  II.  151 

Riney  v.  Hill  IL  425 

Ringgold  V.  Tyson  11.  469 

Ringoe  v.  Biscoe  II.  83 

Ripka  V.Pope  L  311 

Ripley  v.  Greenleaf        I.  385,  396,  399 ; 

IL  246 

Riser  v.  Snoddy  II.  659 

Ritchie  v.  Bradshaw  II.  72 

V.  Moore  IL  610 

Rives  V.  Parmley  I.  494,  642 

Rix  V.  Nevins  I.  1.^37 

Roach  V.  Ostler  L  62,  288,  316 

V.  Thompson     L  243,  662  ;  II.  458 

Roades  v.  Barnes  IL  154,  204 

Robarts  v.  Tucker        I.  321,  357  ;  IL  64, 

80,  81,  485,  590,  596 

Robb  V.  Bailey  II.  440 

Robbins  v.  Bacon  L  333,  334 

V.  Eaton  1.  74,  75 

V.  Hay  ward  II.  426 

V.  Otis  II.  649 

V.  Pinckard  I.  622,  626 

V.  Richardson  L  224,  226 

Robert  v.  Garnie  IL  222,  223,  228 

Roberts  v.  Adams  I.  110,  HI 

t;.  Austin  I.  94 

V.  Bethell  I.  49,  289  ;  II.  489 

V.  Bradshaw   L  617  ;  II.  490,  491 

».  Button  1.  97,  122 

v.  Eden  IL  27,  219 

V.  Goff  IL  416 

r.  Kilpatrick  IL  348 

r.  Mason  L  311,  432,  438 

V.  Peake  L  42,  610 


xcvin 


INDEX   TO   CASES    CITED. 


Roberts  v.  I'iUow  II.  628,  630 

V.  Slion  II.  517 

V.  Trenayne  11.412,413,414,  417 

Robertson  v.  Kensington  II.  21 

V.  Nott  II.  525 

V.  Parks  II.  609 

v.  Pope  I.  99 

T.  Sheward  I.  35 

V.  Smith  I.  247,  249,  251 

r.  Vogle     I.  507  ;  II.  241,  245, 

246 

V.  Wood  n.  630 

Robertsons  v.  Banks  I.  90 

Robie  ».  Flanders  II.  634 

Robins  v.  Gibson  I.  541,  644 

V.  Maidstone  11.  487 

V.  May  I.  44 

Robinson,  Ex  parte  I.  104 

r.  Abell  11.  120,  121 

V.  Ames      I.  264,  338,  345,  350, 

539,  541  ;  II.  463 

r.  Bank  of  Darien     II.  94,  275, 

298,  302,  308 

V.  Batchelder  11.  532 

«.  Bland        I.  62,  217;  II.  155, 

318,  319,  324,  326,  376,  394,  410 

V.  Blen  I.  373 

V.  Campbell  II.  327 

V.  Crandall  II.  374,  446 

V.  Curry  II.  292,  299,  301 

V.  Doolittle  II.  226,  227 

V.  Furbush  II.  607 

V.  Hamilton  I.  493 

V.  Hawksford        I.  273  ;  II.  59, 

72,  73,  74,  94 

V.  Johnson  I.  643 

V.  Maco  II.  620 

V.  Mamcy  II.  175 

V.  Read      IL  154,  155,  179,  184 

V.  Reynolds  I.  180 

V.  Robinson  II.  641 

r.  Taylor  I.  145 

».  Yarrow  L  107,  321,322; 

II.  7,  482,  589,  590,  501 

Robison  v.  Lyle  I.  2.3.3 

Robson  V.  Bennett         I.  273,  514 ;  II.  72, 

74,75 
r.  Curicwis  I.  469 

V.  Barley  II.  442 

V.  Oliver  11.  183,  184 


Roche  V.  Campbell  I.  306,  307 

Rockingham  v.  Oxenden  II.  214 

Bank  v.  Claggett        II.  455 

Rockwood  V.  Brown  II.  637 

Roden  v.  Ryde  11.  479 

Rodes  V.  Blythe  11.  424 

Rodick  V.  Gandell  II.  56,  61 

Roe  V.  Jerome  II.  318 

Roffey  V.  Greenwell  II.  393 

Rogers  v.  Batchelor  I.  126 

V.  Hackett     I.  595,  597,  603,  605, 

610 

r.  Kneeland  11.  130 

r.  Langford  II.  97,  104,  183, 

184,  192 

V.  Miller  II.  294,  304,  310 

V.  Morton  I.  183 

V.  Rathbun  II.  416 

V.  Reed  II.  17 

V.  Rogers  I.  201 

V.  Stevens      I.  533,  536,  541,  596, 

598,  618,  642,  644,  647 

V.  Stoever  II.  642 

V.  Walker  I.  151 

r.  Waters  I.  201  ;  II.  649 

Rogerson  v.  Hare  I.  505 

V.  Ladbroke  II.  605,  618 

Roget  V.  Merritt  II.  41,  103,  186,  192 

Rohan  v.  Hanson  II.  517 

Rohde,  Ex  parte  I.  528 

V.  Proctor  I.  500 

Rohrer  v.  Morning  Star  II.  469 

Rolfe  V.  Caslon  I.  199 

V.  Wyatt  II.  250 

Rolin  v.  Steward  11.63,64 

Rollins  i;.  B.irtlett  II.  555,  574 

V.  Stevens  I.  140 

RoUman  v.  Baker  II.  393 

Rolston  V.  Click  I.  140 

Rolt  V.  Watson    II.  289,  291,  292,  296,  303 

Roosa  V.  Crist  II.  352,  358 

Roosevelt  V.  Cebra  II.  36) 

V.  Woodhull  I.  5.'n 

Rootw.  Taylor  II   611 

i;.  Wallace  II.  107 

Rordasnz  v.  Leach  II.  4.'I9 

Rosii  V.  Brotherson  II.  222 

Roscoe??.  Halo  II.  651,  660 

Rose  V.  Dickson  II  408 

V.  Laffan  II.  4.'i't,  451 


INDEX   TO    CASES   CITED. 


XCIX 


Rose  V.  Learned 

II.  510 

Ruddell  V.  Folson 

II.  66S 

V.  M'Leod 

II. 

360,  363 

V.  Walker 

n.  458 

V,  Rowcroft 

1.41 

Ruddcrow  v.  Huntington 

1.205 

V.  Truax 

1.214 

Ruff  V.  Bull 

1.375 

Rosher  v.  Kieran 

I.  504 

V.  Webb 

1.51 

Ross,  Ex  parte 

II.  629 

Rugely  V.  Davidson     I.  382, 

519 

II.  502 

V.  Bank  of  Burlington  II.  294 

V.  Bedell  I.  188,  189,  634,  635, 

640  J  II.  342 

v.  Pearson  I.  607 

V.  Planters'  Bank  I.  475,  I.  476 

V.  Ross  II.  649 

V.  Russell  II.  425 

V.  Smith  n.  45,  50,  53 

ij.  Whitson  11.167 

Rosseau  v.  Cull  11.  202,  225 

Rossiter  v.  Rossiter  I.  101,  118 

Rotch  V.  Edie  11.  330 

Rothschild  v.  Corney     I.  271,  272  ;  II.  79 

V.  Currie  I.  641  ;  II.  325, 

329,  336,  339,  340 

Rouse  V.  Redwood  I.  599 

V.  Southard  11.  639 

Routh  V.  Robertson  I.  476 

Row  V.  Dawson  I.  336 

V.  Pulver  I.  237 

Rowan  v.  Odenheimer  I.  476 

Rowe  V.  Tipper  I.  504,  514 

v..  Young  I.  306,  307,  308,  3 1 1 

Rowland  v.  Stevenson  11.  361 

Rowlands  v.  Springett        I.  468,  469,  476 

Rowley  ».  Ball         11.290,291,293,295, 

297,  303 

V.  Home  II.  258 

V.  Stoddard  I.  248 

Rowning  v.  Goodchild  U.  315 

Rowt  V.  Kile  11.  477 

Rowton,  Ex  parte  II.  5 

Roxborough  v.  Messick  I.  224 

Royal  Bank  of  Scotland,  Ex  parte  II.  50 

V.  Cuthbert    II. 

360,  361,  363 

Royal  British  Bank  v.  Turquand      II.  35 

Royce  v.  Barnes  II.  443 

Rucher  v.  Conyngham  IE.  173,  413 

Rucker  v.  Hannay  II.  660 

V.  Hiller  I.  534,  538,  540 

Ruckersville  Bank  v.  Hemphill       II.  607 

Ruckmaboye  v.  Mottichund     II.  631,  635 

RuddelU.  Ambler  11.401,416 


Ruggles  V.  Holdcn  I.  237  ;  II.  244 

V.  Keeler  II.  327,  382 

V.  Patten      I.  250,  309  ;  II.  235, 

242,  250 

Rumball  v.  Ball  I.  375  ;  II.  643 

Rumsey  v.  Leek  I.  197 

V.  Sargent  I.  205 

Runnion  v.  Crane  II.  577 

Runyon  v.  Latham  II.  222 

V.  Mountfort  L  490,  493 

Rushing  v.  Rhodes  11.  642 

Rushton  V.  Aspinwall  I.  412 

Rushworth  v.  Moore  I.  635 

Russ  «.  Fay  11.  636 

Russel  V.  Ball  I.  189 

V.  Langstaffe  II.  567 

Russell  V.  Babcock  II.  126 

V.  Bell  11.  613 

V.  Blake  II.  465 

V.  Buck  L  587,  621,  623  ;  II. 

126,  333,  347 

r.  Cook  I.  196 

V.  Copp  II.  649 

V,  Drummond  I.  1 1 7 

V.  Hadduck  IT.  275,  277 

V.  Hankey  IL  216 

V.  Langstaffe         L  109,  110,  112, 

446,  507;  IL  10,  11 

V.  Lucas  II.  425 

V.  Moseley  IL  131 

».  Phillips  L  282,312 

V.  Swan  II.  5 

V.  Whipple  I.  25 

V.  Wiggin       L  294,  297 ;  II.  109, 

134 

Rutherford  v.  Mitchell  IL  450 

Rutland's  Case  II.  502 

Rutland  Bank  v.  Buck  I.  226 

&  Burlington  R.  R.  Co.  v.  Cole 

IL  452,  518 
Rutledge  v.  Greenwood  II.  246 

Ryan  v.  Barger  II.  605,  609 

Ryder  v.  Ellis  II.  436 

Rvraes  v.  Clarkson  I.  22 


INDEX  TO   CASES   CITED. 


backet  v.  Loom  is  I.  270 

Sacrider  v.  Broiva  I.  641 

Sadler  v.  Hoover  II.  404 

Saffordr.  Vail  11.415 

r.  Wyckoff  1.165,166,169; 

II.  89,  494 

Sage  V.  Wilcox  11.  119,  126,  128 

Sailly  V.  Elmore  I.  238 

St.  Catherine,  The  II.  174 

St.  Jago  de  Cuba  II.  170 

St.  John  V.  Homans  II.  61,  71,  78 

V.  McConnell  II.  470,  490 

v.  Purdy  II.  152,  157,  183 

St.  Louis  Perpetual  Ins.  Co.  v.  Homer 

II.  508 
Salem  Bank  v.  Gloucester  Bank      11.  38, 
90,  101,  186,  189,  477 
Salinas  v.  Wright  I.  39 

Salisbury  v.  Gillett  11.  480 

Sallee  B.  Chandler  IL  319 

Salmon  v.  Hoffman  II.  1C7 

V.  Webb  II.  537 

Salomons  v.  Stavely  I.  642 

Salter  v.  Burt  L  400,  402  ;  IL  68,  69 

Saltmarsh  v.  Planters',  &c.  Bank   II.  426, 

427,  428 

V.  Tuthill  L471  ;  IL  468 

Saltus  V.  Everett  IL  34,  116 

Sampet's  Case  II.  45 

Sams  V.  Stockton  II.  647 

Samuell  v.  Howarth  I.  246  ;  II.  247 

Samuels  v.  Evans  I.  34 

Sanborn  v.  Little  IL  610 

V.  Southard  I.  268,  382  ;  II. 

498,  .502,  516 

Sandefur  v.  Mattingley  IL  306 

Sanders  v.  Anderson  I.  36 

V.  Bacon  II.  146,  543 

r.  Blain  L  159 

V.  Branch  Bank  II.  1 60 

V.  Robertson  II.  631 

T.  St.  Neot's  Union  I.  1 63 

V.  Van  Zeller  II.  34 

Sanderson  v.  Bowes         I.  306,  427,  429  ; 

IL  644 
V.  Collman  I.  321  ;  II.  482,  590 
V.  Olmsted  II.  629 

T.  Symonds  II.  546 


Sandford  v.  Dillaway       I.  446,  528,  556  ; 

IL  150 

V.  Norton     1. 189,  258  ;  IL  121, 

133,  275,  277 

Sands  t;.  Clarke         I.  427,  446,  447,  557  ; 

IL  98,  192 

V.  Lyon  I.  401 

Sanford  v.  Allen  IL  142 

V.  Hayes  II.  656 

V.  Mickles  I.  146,  264,  380 

Sanger  v.  Cleveland  I.  200 

V.  Stimpson  I.  473 

Sangster  v.  Mazarredo  II.  481 

Sannickson  v.  Brown  II.  647 

Sard  p.  Rhodes  IL  217 

Sargent  v.  Appleton  II.  239,  240,  242,  248 

V.  Southgate        II.  152,  604,  619 

Sarsefield  v.  Witherly  11.  73 

Sasscer  v.  Farmers'  Bank  I.  471 

V.  Walker  II.  446 

V.  Whitely  L  493 

Sater  v.  Hendershott  11.  456 

Sauerwein  v.  Brunner  IL  433 

Saul  V.  Brand  L  482,  487,  489 

V.  Creditors  II.  320,  349 

Saunders's  Case  IL  406 

Saunders  v.  Frost  I.  230 

V.  Lambert  11.  406,  421 

Saunderson  v.  Jackson  I.  37 

v.  Judge  L  307,  371,  421, 

428,  435,  436,  478  ;  IL  492 

V.  Piper  I.  27 

V.  Warner  II.  391 

Savage's  Case  11.  387,  390 

Savage  v.  Aldren  II.  643 

V.  Bcvier  IL  449 

V.  Davis  IL  604 

T.  King  L  79,  81  ;  II.  53 

r.  Merle  I.  537;  IL  211,  221 

V.  Rix  L  96,  122 

Savings  Bank  v.  Bates      I.  223,  396,  416 

Sawyer  v.  Iloovey  I.  275 

V.  Baker  IL  625 

r.  Cutting  IL2I0 

V.  Patterson  II.  246 

».  Tappan  11.225,641 

Saxton  V.  Johnson  I.  45 

Saycr  v.  Chaytor  I.  251 

V.  Kitchen  II.  489 

Saylcs  V.  Tibbitts  IL  629 


INDEX   TO   CASES   CITED. 


C^ 


Sayre  v.  Frick 
V.  Lucas 
V.  Reynolds 

Scales  V.  Jacob 


I.  363,  502 

I.  26 

n.  550,  577 

II.  651 


Scaiborough  v.  Harris  I.  508, 554  ;  II.  241 

V.  Reynolds  I.  117 

Scarpellini  v.  Atcheson  I.  86,  88 ;  II. 

631,  639 

Schcmerhom  v.  Loines  II.  179 

Schermerhorn  v.  Talman  II.  408,  432 

Schimmelpennich  v.  Bayard      I.  118,  294, 

315,330;  II.  151 

Schlatter  v.  Rector  I.  395 

Schmidt  V.  Limehouse  II.  393 

V.  Radcliffe  I.  602,  603,  607,  622 

Schnebly  v.  Ragau  11.  168 

Schneider  v.  Norris  I.  282 

V.  Schiffman  11.  121,  122 

Schofield  V.  Bayard     I.  316,  319,  460,  463 

Scholey  v.  Daniel  II.  45 

V.  Ramsbottom  II.  80,  213 

V.  Walsby    II.  220,  221,  487,  488 

V.  Walton  II.  660 

Schollenberger  v.  Nehf  II.  120,  121 

Schoneman  v.  Fegley  II.  499 

Schoonmaker  v.  Roosa       I.  178,  197,  198 

Schroeppel  v.  Corning  II.  642 

Schroeppell  v.  Shaw  I.  237 

Schroyer  ».  Lynch  11.315 

Schultz  V.  Astley        I.  115,  290  ;  IL  482, 

483,  587 
Schweizer  v,  Weibcr  II.  616 

Scofield  V.  Day   L  664  ;  IL  341,  370,  376, 

377 
ficott  V.  Bevaa  I.  664  ;  II.  369 

V.  Brest  II.  406 

V.  Cleaveland  II.  301 

V.  Commonwealth  II.  92 

V.  Conover  IL  96 

V.  Fisher  II.  222,  223 

V.  Gillmore  I.  217 

T.  Greer  I.  578,  592 

V.  Haddock  IL  637,  640 

T.  Lewis  II.  420 

».  Lifford         L  328,  481,  514,  541; 
IL  237,  492 
V.  Lloyd  II.  468 

V.  M'Lellan  I.  116 

r.Nesbit  11.416 

».  Nichols  IL  638 


Scott  V.  Searles 

V.  Surman 

V.  Walker 
Scoville  V.  Canfield 
Scriba  v.  N.  A.  Ins.  Co. 
Scribner  v.  Fisher 


L  158 

IL  154 

IL  562,  577 

IL  318,  367 

II.  330 

II.  325,  364 


Scruggs  V.  Gass     II.  89,  98, 103,  106, 187, 

194 

Scudder  v.  Andrews  I.  210 

V.  Morris  II.  393 

Scull  V.  Edwards  L  21 

Seabury  ?;.  Hungeiford    I.  580;  II.  123, 

125 

Seacord  v.  Burling  II.  505 

V.  Miller  I.  563,  572 

Searight  v.  Calbraith  II.  364,  365 

Sears  v.  Brink  IL  123 

V.Smith  II.  163 

V.  Wright  II.  510 

Seaver  v.  Dingley  II.  207 

V.  Lincoln      I.  264,  265,  359,  372, 

377,  519 

r.  Phelps  I.  150;  II.  6 

Seay  v.  Bacon  II.  639 

V.  Bank  of  Tennessee  I.  33 

Sebag  V.  Abitbol        I.  309,  329,  352,  426 

Sebree  v.  Dorr  IL  286,  301,  473 

Sedgwick  v.  Jager  II.  473 

Seeley  v.  Engell  11.  615 

Segond  ».  Thomas  II.  411 

Selby  V.  Eden  I.  308,  309,  425 

Selden  v.  Pringle  II.  283 

Selfridgew.  Northampton  Bank  II.  95,  222 

Selleck  v.  Sugar  Hollow  Turnpike  Co. 

IL  225 

Selser  v.  Brock  I.  236 

Semmes  v.  Magruder  II.  660 

Semple  v.  Burd  IL  167 

V.  Cole  IL  577 

V.  Morrison  I.  71 

Seneca  Co.  Bank  v.  Neass         I.  432,  482, 

490,  498, 645 

V.  Schermerhorn  II.  434 

Sentance  v.  Poole  I.  150 

Serle  v.  Norton     I.  41,  42,  273  ;  II.  69,  74 

r.  Waterworth  I.  196  ;  II.  6 

Serrell  v.  Derbyshire  Railway  Co.  I.  271  ; 

IL  79 

Sessions  v.  Moseley  II.  54,  56,  446 

r.  Richmond  11.  421 


Cll 


INDEX   TO   CASES   CITED. 


Seton  V.  Seton  I.  178,  179 

Seventh  Ward  Bank  v.  Hanrick      I.  513, 

515,  518;  II.  244 

Sfcwell  V.  Evans  II.  479 

Sexton  V.  Fleet  11.  53 

Seymour  v.  Deming  II.  634 

T.  Sexton  n.  227 

».  VanSlyck  11.119 

Shackleford  v.  Douglass  II.  651,  654 

Shallenberger  v.  Ashworth  II.  634 

Shamburgh  r.  Commagere  I.  422  ;  11. 467, 

469,  470 
Shank,  Ex  parte  II.  170 

Shaukhn  v.  Cooper  I.  637,  640,  641,  644  ; 

II.  325 

Shannon  v.  Dunn  II.  633 

V.  Langhora  I.  199 

Sharp,  Ex  parte  II.  82 

V.  Bailey  I.  309,  557  ;  II.  498 

V.  Emmet  I.  104,  105 

».  Head  II.  634 

V.  Smith  II.  472 

».  Teese  I.  216 

V.  Ward  I.  393 

Sharpe  v.  Bagwell  II.  554 

V.  Bingley  II.  245 

T.  Drew  I.  645 

Sharpies  v.  Rickard  II.  331 

Sharpley  r.  Hurrel  II.  4 1 3 

Shaver  v.  Ehle    II.  37,  38,  306,  477,  479, 

589,  600 

Shaw  V.  Allen  n.  651 

V.  Broom  II.  472 

V.  Croft  I.  503,  504 

v.  Emery  I.  80 

V.  Grifith  II.  246 

V.  Loud  I.  243 

V.  Marlsliam  II.  490 

V.  Methodist  Epis.  So.  11.  146,  540 

V.  Newell  II.  652,  653 

T.  Nolan  II.  246 

V.  Picton  II.  222 

V.  Pratt  I.  248 

r.  Rccd      1.311,432,446,450,528 

V.  Stone  I.  170 

Shcarm  v.  Burnard  II.  286,  473 

8hed».  Brett  1.358,362,411,413,414,420, 

457,  458,  473,  478,  497,  .505  ; 

II.  213,  214,  462,  492 

V.  Pierce  II.  532,  538 


Sheehy  v.  Mandeville         I.  249,  381  ;  II. 
153,  200,  218,  252 
Sheets  v.  Pabody  I.  156,  157 

Shelby  v.  Gay  II.  383,  634 

Sheldon  v.  Benham    I.  401, 402,  483,  641  ; 

II.  495 

V.  Kendall  II.  610 

V.  Middleton  11.  444 

V.  Steere  II.  424 

Shelmerdine  v.  Duffy  II.  459 

Shelton  v.  Braithwaite  I.  472,  495 

V.  Darling  I.  93,  97,  98,  102,  169 

T.  Gill  11.  410 

V.  Marshall  II.  319 

V.  Tiffin  II.  168 

Shenton  v.  James  I.  45 

Shepard  r.  De  Bernales  II.  155 

V.  Haley  I.  483 

V.  Hall  I.  394,  478,  488 

T.  Hawley  I.  363,  502 

Shephard  v.  Watrous  I.  197 

Shepherd  v.  Chamberlain  I.  419 

V.  Evans  II.  449 

V.  Temple  I.  204  ;  II.  522 

Shepley  v.  Waterhouse  II.  656 

Sheppard's  Case  II.  588 

Sheppard  v.  Graves  I.  388 

V.  Hamilton  II.  410 

V.  Spates  I.  401 

Sheratz  v.  Nicodemus  II.  167 

Sherer  v.  Easton  Bank      I.  596,  608,  610, 

622,  636,  647 

Sherman  v.  Clark  I.  498 

V.  Comstock  II.  68 

V.  Gassett  II.  320 

V.  Goble  r  14 

V.  Wakeman  II.  649,  652 

Sherrill  v.  Hopkins  II.  318,  319,  325, 

326,  333,  362 

Sherrington  v.  Yates  II.  447 

Sherrod  v.  Bennett  II.  649 

V.  Rhodes  I.  555,  596,  599 

Sherwood  v.  Dunbar  II.  638 

V.  Roys  II.  209,  444 

V.  Sutton  II.  G40 

Shibla  V.  Ely  II.  629 

Shields  v.  Commonwealth  II.  301 

V.  Taylor  I.  45 

Shirley  r.  Fellows  I.  555 

V.  Todd  II.  604 


INDEX   TO   CASES   CITED. 


cm 


Shirreff  D.  Wilks  I.  125,  143  ;  II.  477 

ShirtliflFe  v.  Gilbert  II.  245 

Shitler  v.  Bremer  II.  651 

Shiver  v.  Johnson  II.  475 

Shoemaker  v.  Benedict  II.  658 

Shook  V.  State  I.  241  ;  II.  135 

Short  V.  Bryant  II.  633 

Shortbridge's  Case  II.  82 

Shortredc  v.  Cheek  II.  119,  131 

Shotwell  V.  M'Kown  I.  99,  170 

V.  Miller  I.  250 

Shove  V.  Wiley  I.  369 ;  II.  492 

Shrieve  v.  Combs  I.  470 

V.  Duckhara     I.  273,  472  ;  II.  59, 

72,  74 

Shriner  v.  Keller  I.  553  ;  II.  159 

Shrivell  v.  Payne  I.  24 

Shuck  V.  Wight  II.  414 

Shukard's  Case  II.  586 

Shumway  v.  Keed  II.  152 

Shute  V.  Robins  I.  264,  268,  340,  342, 

343,344;  II.  94 

Shuttlesworth  v.  Noyes    I.  79,  86 ;  II.  447 

Shuttleworth,  Ex  parte       II.  41,  184,  601 

V.  Stephens      I.  62;  II.  471 

Sibley  v.  Fisher  II.  577,  579 

V.  Lumbert  II.  655 

T.  McAUaster  I.  238 

V.  Phelps  II.  637,  662 

Sibree  v.  Tripp  I.  26  ;  II.  155,  218 

Sicard  v.  Whale  II.  327,  367,  369 

Sice  V.  Cunningham  I.  264,  269,  376, 

378,  379,  380,  600,  601  ;  II.  504,  .505 

Sidaway  v.  Hay  IL  361,  363 

Siddall  ?;.  Rawcliff  II.  252 

Sidford  V.  Chambers  II.  486 

Sidwell  V.  Evans  I.  198 

Siffkin  V.  Walker  I.  130 

Sigerson  v.  Mathews   I.  586,  595,  596,  604 

Siggers  v.  Brown  I.  486 

V.  Lewis  II.  214,  624 

Sigourney  v.  Lloyd       I.  17,  119;  II.  43, 

210 
V.  Severy  II.  637 

V.  Wetherell    IL  135,  139,  247 
Sill  r.  Worswick  II.  387 

Silver  v.  Henderson  I.  309 

Silver  Lake  Bank  v.  North  IT.  358 

Silvisr  Ely  I.  198 

Simmonds  v.  Parminter    II.  453,  455,  487 


Simmons  v.  Taylor  II.  65,  586 

V.  Williams  II.  607 

Simms  v.  Clark  IL  38,  39,  101,  189, 

190,  600,  601 

V.  Smith  II.  640 

Simons  v.  Steele       IL  125,  128,  130,  132., 

137 

V.  Waterman  II.  438 

Simonton  v.  Steele  I.  195  ;  IL  522 

Simpson  v.  Clarke  I.  186,  187,  191 

V.  Fullenwider  II.  420,  427 

V.  Griffin  I.  662 

r.  Stackhouse  II.  577 

V.  Swan  I.  104 

V.  Turney  I.  514 

V.  Warren  IL  418 

Sims  V.  Bond  IL  61 

V.  Goudelock  II.  638,  642 

Simson  v.  Ingham  IL  224,  228 

Sinclair  v.  Baggaley  I.  49 

V.  Lynah  I.  470 

V.  Piercy  II.  92 

Singleton  v.  Lewis  II.  425 

Sison  V.  Kidman  I.  196 

Sisson  V.  Ban-ett  I.  233  ;  II.  517 

V.  Thomlinson  I.  554,  556 

Sissons  V.  Bicknell  IL  383 

Sistermans  v.  Field  I.  189,  279 

Sizer  v.  Heacock  II.  242 

V.  Miller  II.  434 

Skeate  v.  Beale  IL  493 

Skilbeck  v.  Garbett  L  481 

Skinner  v.  Deming  IL  107 

V.  Somes  II.  46 

Skofield  V.  Haley  II.  137 

Skowhegan  Bank  v.  Baker       II.  445,  453 

Slack  V.  Lowell  II.  399 

V.  McLagan  L  210;  IL  168 

V.  Moss  II  470 

Slacum  V.  Pomery  IL  326,  336,  339, 

342,  343,  346,348,  371,  372 

Slade  V.  Halsted  L  178;  IL  523 

Slagle  V.  Rust  II.  556 

Slark  V.  Highgate  Archway  Co.        I.  164 

Slater  v.  Cave  IL  634 

V.  Lawson  II.  659 

V.  West  IL  271 

Slayback  v.  Jones  IL  608 

Slayinaker  v.  Gundacker  II.  20.?,  204 

Sleeth  V.  Murphy  IL  633 


01 V 


INDEX   TO   CASES   CITED. 


Slegg  V.  Phillips 

n.  465 

Smith  V.  Chandler 

I.  86 

Sleigh  V.  Sleigh 

L  555 

V.  Chester          ] 

[.521,  322;  IL  81, 

Slipher  r.  Fisher 

1.235 

99,  196, 

212,  482,  483,  485, 

Slipper  1 .  Stidstone 

n.  608 

590,  598 

,  599 

Sloan  V.  Petrie 

II.  623 

T.  Clapp 

I.  251 

T.  Sloan 

n.  648 

T.  Clarke 

n.  26,  485 

Slocum  V.  Hooker 

1.77 

V.  Clopton 

I.  255 

Slocumb  V.  Lurty 

II.  160 

X.  Crooker 

n.  558,  582 

V.  Holmes 

II. 

152,  160 

t).  Crosby 

11.  384 

Sloman  i'.  Bank  of  England 

11.82 

».  Crutcher 

II.  457 

V.  Cox 

II. 

235,  552 

■V.  Dawson 

II.  647 

Sloo  V.  Roberts 

II.  296 

V.  De  la  Fontaine                   I.  305 

Slosson  V.  DuiF 

II.  434 

V.  De  Witts 

L  153;  IL  5.  29 

Small  V.  Browder 

II.  618 

T.  De  Wruitz 

IL  5,  29,  472 

V.  Sacramento  Navigation 

& 

X.  Doak 

I.  232 

Mining  Co. 

II.  478 

T.  Dunham 

II.  555,  637 

n.  Sloan 

II. 

132,  133 

».  Eastman 

II.  650,  651 

V.  Smith 

II 

.  28,  266 

r.  Elder 

II.  507 

Smalley  r.  Bristol 

n. 

145,  537 

V.  Essex  Co.  Bank                 II.  209 

r.  Edey 

1.45 

T.  Ewer 

IL  610 

V.  Wight 

11.53 

x.  Ferrand 

II.  184 

Smallwood  v.  Vernon 

II.  25 

T.  Finch 

II.  120 

V.  Woods 

n.  244 

V.  Fisher 

L  490,  491 

Smart  ».  West  Ham  Un 

ion 

I.  163 

x.  Fiske 

II.  641 

Smedcs  v.  Utica  Bank 

I. 

482, 488 

V.  Gibbs 

L  367,  641.  643 

Smedley  v.  Roberts 

II.  409 

X.  Gibson 

L  116 

Smith's  Case 

I.  62 

X.  Goddard 

IL96 

Smith,  Ex  parte 

II.  242 

X.  Harper 

IL  203,  206 

r.  Abbot 

I.  301 

X.  Hill 

II.  646 

V.  Anders 

II.  621 

V.  Hiscocks 

L  223 

V.  Atwood 

II. 

327,  634 

X.  Iluie 

IL  606 

V.  Bank  of  Wash 

ngton 

I.  412; 

V.  Ide 

IL  128 

II.  462 

X.  Jamesons 

IL82 

r.  Barber 

II.  519 

X.  Janes           I. 

273  ;  IL  59,  73,  74 

V.  Bartholomew 

I  245 

X.  Johnson 

II.  615 

V.  Battens 

1.41 

;  II.  663 

X.  Kendal  (1  Es 

p.)    I.  408  ;  IL  445 

V.  Beckct           I. 

528, 

556 

;  II.  239 

X.  Kendall  (6  T 

.  11.)       I.  227,  408  ; 

V.  Bohemc 

1.43 

II.  4,  210,  445 

V.  Boultoii 

I. 

468, 

470,  477 

V.  Kittridgc 

L  179,  197;IL55 

V.  Braiiic     I.  183 

;II. 

266 

283,  493 

r.  Knox        I.  183,  236,  326  ;  II.  27 

7>.  BrinckcrliolF 

II.  614 

T.  Lcaper 

II.  6.50 

«.  Brooks 

I 

195 

:  II.  522 

X.  Little 

L  471,  51.5,  643 

V.  Brown 

11.361 

X.  Lord 

IL  474 

•c.  Brush 

II.  407 

X.  Loyd 

II.  228.  230 

v.  Bufliannn     II. 

.319 

341 

360,  36.1 

X.  Lusher       I. 

124,  129,  137,  200; 

V.  Burton 

II. 

437,  443 

11.  440 

p.  Bytliewood 

I 

375,  407 

X.  M'Clure 

I.  14  ,  IL  293,  474 

e.  Campbell 

II.  661 

V.  McGowan 

II.  580 

».  Cnrtwright 

I.  163 

X.  M'Lcan 

1.  311,  4.32,  4.33 

r.  Cassity 

II.  642 

V.  Maploback 

U.  53i 

INDEX   TO    CASES   CITED. 


CV 


Smith  V.  Marsack 
V.  Martin 
V.  Mayo 
V.  Mead 


I.  321  ;  II.  459 

U.  487 

1.74 

XL  318,  320,  376 


V.  Meclianics',  &c.  Bank        I.  2.'J8  ; 

n.  64,  81,  592 

V.  Mercer      II.  38,  80,  81,  99,  195, 

212,  482,  588,  590,  598,  599 


V.  Morgan 

II.  467 

V.  Mullett 

I 

481,  513,  514 

V.  Myler 

II.  609 

V.  Newby 

XL  636,  646 

V.  Nichols 

II.  409 

V.  Nightingale 

I.  38 

V.  Nissen 

1.283,317 

V.  Pedley 

I.  83 

V.  Philbrick 

I.  455,  459 

V.  Pickering 

I. 

154  ;  II.  5,  16 

V.  Prager 

II.  465,  471 

V.  Ralston 

I.  643 

V.  Roach 

I.  337,  513 

V.  Robinson 

1.311 

V.  Rockwell 

II. 

261,  263,  298, 
300,  302 

V.  Rogers 

II.  161,201 

r.  Sainsbury 

11.477 

V.  Schanck 

n.  472 

».  Screven 

II.  224 

V.  Shaw             I 

.  664 

;  II.  370,  425 

V.  Sheppard 

II. 

211,  255,  285 

V.  Simms 

II. 

655,  662,  663 

V.  Smith     I.  28 

;  II. 

154,  186,  319, 

325, 

326,  359,  360, 

377, 

546,  605 

V,  Spinolla 

II 

327,  367,  369 

V,  Spooner 

I.  89 

V.  Steele 

I.  241 

r.  Stephens 

II.  508 

V.  Strong 

11.89 

V.  Talbot 

II.  649,  651 

V.  Thatcher 

I.  547 

V.  Thome 

II.  466 

V.  Townsend 

II.  659 

V.  Van  Loan 

I.  222 

V.  Walker      II. 

290, 

295,  297,  310 

V.  Weld 

II.  559 

V.  Whiting     I. 

159, 

474,  475,  476  J 
II.  4,  6 

V.  Wigley 

II.  229,  230 

r.  Wilson        II 

154 

155,  182,  644 

Smith  V.  Winter  I.  147 ;  II.  248,  24J 

V.  Woodcock  II.  458 

V.  Young  II.  300,  305,  310 

Smitherman  v.  Kidd  II.  297 

Smithwick  v.  Anderson  II.  469,  470 

Smurr  v.  Forman  X.  45 

Smyley  v.  Head  I.  244 

Smyth  V.  Hawthorn  I.  478 

V.  Strader  I.  126;  II.  440 

Snaith  v.  Mingay       I.  49,  58  ;  II.  10,   12, 

331 
Snee  v.  Prescot  I.  17  ;  II.  178,  210 

Sneed  v.  Hanly  II.  641 

V.  Mitchell  II.  4 

V.  Wiester  II.  200,  218,  230 

Snelgrove  v.  Martin  II.  472 

Snellgrove  v.  Baily  II.  54 

Snoddy  v.  Haskins  II.  640 

Suodgrass  v.  Branch  Bank,  at  Decatur 

II.  286,  299 

Snow  V.  Conant  II.  608 

V.  Leatham  II.  266,  271 

V.  Peacock      X.  258,  260  ;  II.  256, 

257,  259,  271,  272 

V,  Perkins  I.  476 

».  Perry  II.  91,  98,  103,  194 

V.  Sadler  II.  271,  272 

Snyder  z).  Findley  II.  155,  159,  163 

V.  Riley  I.  255 

Soares  v.  Glyn  II.  22 

Society  for  Propagation  of  the  Gospel 

V.  Wheeler  II.  358 

Soffe  2).  Gallagher  XX.  157,  159,  182 

Sohier  v.  Loring  I.  241 

Solarte,  Ex  parte  I.  530 

V.  Palmer  X.  467,  469 

Solita  V.  Yarrow  II.  477 

SoUee  V.  Croft  II.  640 

Solly  V.  Forbes  X.  249 ;  II.  237 

V.  Hinde  I.  207;  II.  521 

Solomon  v.  Gregory  X.  240;  II.  245 

v.  Holt  II.  603 

V.  Turner  I.  205,  211 

Solomons  v.  Bank  of  England  I.  5 1 ,  226  ; 

n.  42,  89,  188,  269,  270,  280,  282 

t).  Dawes  II.  210 

V.  Jones  II.  527 

Sommerville  v.  Stephenson  XI.  502 

Soome  V.  Gleen  II.  413 

Soule  V.  Dawes  II.  471 


CVl 


INDEX   TO   CASES   CITED. 


South,  Ex  parte  I.  336 

Sonthall  v.  Rigg  I.  201 

South  Carolina  Bank  v.  Case  I.  131 

Southcot  V.  Watson  II.  88,  188 

Southerland  v.  "Whitaker  I.  236 

Southern  Life  Insurance  &  Trust  Co.  v. 

Gray  II.  450,  452 

Southwick  V.  Ely  II.  437 

Southwort  V.  Smith  II.  623 

Soward  v.  Palmer  11.  214,  624 

Sowerby  v.  Butcher  I.  94,  103 

Spalding  v.  Bank  of  Susquehanna  Co. 

II.  304 

V.  Vandercook  I.  209 

Spangler  v.  McDaniel  I.  548  ;  11.  72 

V.  Pugh  II.  473 

Spann  v.  Baltzell  I.  394,  466  ;  11.  502, 527 

Sparhawk  v.  Buell  I.  67 

Sparks  v.  Garrigues  II.  424 

V.  Pico  n.  632 

Sparrow  v.  Chismau  1. 134 

Spaulding  v.  Adams  II.  170 

V.  Evans  I.  34 

Speake  v.  Barrett  II.  639 

V.  United  States  II.  558 

Spear  v.  Atkinson  I.  537  ;  II.  200 

V.  Dey  II.  607 

V.  Ladd  II.  8 

V.  Myers  I.  222 

V.  Pratt  I.  282,  283 

Spears  v.  Hartley  II.  632 

Speers  v.  Sterrett  11.  603,  606 

Spencer  i;.  Babcock  II.  610 

V.  Bailey  II.  171 

V  Ballou  II.  490 

V.  BankofSalina  1.490,491,493 

r.  Blaisdell  II.  92 

V.  Harvey  I.  563,  570,  572,  582 ; 

11.  534 

V.  Morgan  II.  006 

V.  Sfiencer  II.  630 

V.  Stirling  I.  508 

V.  Tililen  II.  413 

Spicer  r.  Norton  11.  141 

Spies  e.  Gilmore        1.  450,  456;  II.  120, 

123,  520 

V.  Ni'wbcrry  I.  471 

Spillcr  V.  Westlako  I.  203 

Spindlcr  v.  Grcllctt  I.  427 

Spires  v.  Ilumot  II.  228 


Splitgerber  v.  Kohn 
Spong  V.  Wright 
Spooner  v.  Gardiner 

V.  McConnell 
Spratt  V.  Hobhouse 


n.  355,  542 

II.  651 

I.  186,  543 

II.  348 

II.  93,  94 


Sprigg  V.  Bank  of  Mount  Pleasant  I.  235 

T.  Cuny  1.  358  ;  II.  442 

Spring  V.  Lovett  II.  467,  509 

Springer  ».  Hutchinson  II.  133 

V.  Toothaker  I.  242,  246 

Springfield  Bank  v.  Merrick     II.  148,  540 

Sproat  V.  Matthews  I.  283,  285,  301,  302, 

328,  329,  332 

Sproule  V.  Legg  I.  307,  428  ;  II.  342 

Spurlock  V.  Union  Bank  I.  596.  601,  607, 

609 

Spybey  v.  Hide  11.  210 

Staats  V.  Howlett  I.  130 

Stackhouse  v.  Barnston  II.  629 

Stackpole  v.  Arnold     L  93  ;  II.  519,  521 

Stacy  V.  Baker  II.  333,  338 

Stadt  V.  Lill  11.  131 

Stafford  v.  Rice  II.  469 

V.  Van  Rensselaer  II.  167 

V.  Yates  I.  504  ;  II.  245,  247,  459 

Stahl  V.  Berger  II.  566,  567,  574 

Stainback  v.  Bank  of  Virginia  I.  108, 

109,  362,  639 

V.  Read  I.  107,  108,  109 

v.  Penning  II.  173 

V.  Shepard  II.  173,  174 

Stainer  v.  Tysen  I.  108,  109 

Stalker  v.  M'Donald  I.  224  ;  II.  43 

Stall  r.  Catskill  Bank  1.  140,  141 

Stam  V.  Kerr  II.  153 

Stamford  Bank  v.  Benedict  II.  228 

Stamps  V.  Brown  I.  483 

Standage  v.  Crcigliton  I.  615 

Stanley  v.  Kenii)toa  II.  415,  637 

i;.  Westrop  II.  421 

Stanton  v  Blossom    I.  414,  478,  505,  508, 

537,  543;  II.  214,  462 

V.  Eager  II.  178 

Stan  wood  v.  Stan  wood  I.  86  ;  II.  447 

Staples  V.  Franklin  Bank  I.  401,  407,  411, 

414,  415,  416,  419;  II.  461 

V.  Okincs  I.  580 

Stapleton  v.  Conway  II.  379 

Starcy  v.  Barns  II.  214 

Stark  V.  Ilunton  II.  425 


INDEX   TO   CASES    CITED. 


evil 


Starke  v.  Cheesman 

I.  62,  350 

Stearns  i 

.  Burnham      I] 

.  6,  354,  373,  374 

Starrett  v.  Barber 

II.  224,  225 

z 

.  Wrisley 

I.  260 

State  V.  Bank  of  Fayetteville 

11.90 

Stebbing 

V.  Spicer 

II.  4,  480 

V.  Blackwell 

II.  640 

Stcdman 

V.  Gooch        1.435;  II.  85,  154, 

■r.  Boies 

II.  452 

155,  184,  186,  217,492 

V.  Bouncy 

II.  588 

Steel  V. 

Steel 

II.  612 

V.  Brown 

II.  588 

Steele  v. 

Harmer 

L  325  ;  II.  237 

V.  Clark 

II.  384,  633 

V. 

Sawyer 

L  662 

V.  Corpening 

1.47 

V. 

Spencer 

IL  577 

V.  Crawford 

II.  588 

T. 

Steele 

II.  640 

V.  Fleming 

II.  663 

V. 

Towne 

II.  650 

V.  Floyd 

II.  586 

V 

Whipple 

IL  411 

V.  Grooms 

II.  587 

Stein  V. 

Yglesias 

L  289  -,  II.  604 

V.  Heyden 

II.  588 

Steinhauer  v.  Witraan 

II.  210 

T.  Humphreys 

II.  583 

Stciametz  v.  Currey 

1.507 

V.  McKenzie 

II.  588 

Stephens  v.  Foster 

IL  272 

V.  McLeraa 

II.  545 

V.  Graham 

IL  551,  577,  581 

V.  Mix 

II.  588 

V.  McNeill 

II.  456 

V.  Morton 

II.  586 

V.  Wilkinson 

I.  206 

T.  Polke 

II.  559 

Stephenson  v.  Dickson 

L  511,512 

V.  Purcell 

II.  663 

V.  Doe 

II.  634 

V.  Richmond 

I.  68 

V.  Primrose 

L  482,  487,  489, 

r.  Swope 

II.  384,  633 

562,  569 

».  Taylor 

11.410 

V.  Roper 

II.  301 

V.  Tindal 

II.  588 

Steptoe  V.  Harvey 

II.  406 

V.  "Weaver 

II.  588 

Sterling 

V.  Bender 

IL  437 

Ex  rel.  Commissioners  v.  Van 

V.  Marietta,  &c. 

Trading  Co. 

Pelt 

II.  560 

II.  209, 

242,  245,  443,  459 

Bank  v.  Aersten 

II.  100,  312 

S terry  i 

?.  Robinson      I 

350,  351 ;  IL  463 

V.  Ayers 

I.  480,  497 

Stetson 

V.  Exchange  Bank               II.  613 

V.  Bowers 

1.656 

Stettheimer  v.  Meyer 

I.  222 

V.  Byrd 

II.  632 

Stevens  v.  Austin 

II.  207 

V.  Coquillard 

II.  406,  428 

V.  Barringer 

n.  397 

V.  Cowan 

II.  412,  422 

V.  Beals 

LSI 

V.  Fearing 

II.  212 

V.  Blen 

II.  605 

V.  Henncn 

I.  488,  499 

V.  Blunt 

1.  40 

V.  Hurd  1. 369, 425  ;  II.  1 52, 51 6 

V.  Bomar 

IL  637 

V.  Napier 

I.  436,  437 

V.  Bruce 

L  264 

r.  Rodgers        I 

656  ;  II.  434 

V.  Davis 

n. 407,  410 

V.  Sea  well 

II.  635 

V.  Foster 

II.  634 

V.  Slaughter 

I.  483,  502 

V.  Gaylord 

L  162 

r.  Smith 

I.  393 

V.  Jackson 

L71 

V.  Van  Horn 

11.88 

V.  Lincoln 

IL418 

v.  Watkins 

I.  238 

V.  Lloyd 

IL  565 

v.  Wilson 

II.  245 

V.  Lynch      I. 

246,  596,  607,  623  ; 

of  Indiana  r.  Hayes         I.  641 

IL  249,  467 

of  Arkansas  v.  Bank  of  Wash- 

r. Mclntire 

L  212 

ington 

11.52 

V.  The  Sandwich                 IL  171 

Illinois  V.  Delafield 

11.35 

v.  Strang 

L  33  ;  II.  592 

Steadman  v.  Duhamel 

I.  57  ;  II.  330 

V.  Thacker 

L  327  ;  II.  597 

CVlll 


INDEX   TO    CASES    CITED. 


Stevenson  v  Au  (tin 

1.245 

r.  Unkefer 

11.  413,  428 

Stewart  v.  Ahrenfeldt 

I.  196 

T.  Allison 

I.  641 

V.  Anderson 

11.51,610 

V.  Desha 

I.  544 

C.Eden    1.362,441,449,490,501 

V.  EUice  II.  377 

V.  Kennett  I-  504 

V.  Lee  II-  65 

V.  Marston  H-  641 

V.  Small  I.  222 

V.  Spedden  II.  645 

V.  Stewart  I.  196 

v.  Vaughan  I-  243 

Stickney  v.  Clement  II-  604 

Slierneld  v.  Holden  II.  43 

StillwcU  r.  Bobb  1-311 

Stinson  v.  Brennan  I-  243 

Stipp  V.  Brown  II.  633 

Stivers  v.  Prentice  I.  366,  422,  516 

Stock  r.  Harris  11.315 

Stockbridge  v.  Damon        I.  264  ;  II.  604 

Stocken  v.  Collin  (7  M.  &  W.)         I.  468, 

469,  478,  513 

V.  Collins  (9  Car.  &  P.)        I.  485 

Stockett  r.  Sasser  II.  648,  649,  650 

Stocking  V.  Fairchild  II.  535 

Stockley  v.  Clement  II.  257 

Stockman  v.  Parr  I.  472,  475 

Stocks  V.  Van  Leonard  II.  640 

Stockton  V.  Graves  II.  619 

Stoddard  v.  Doane  II.  646,  651,  660 

V.  Kimball  II.  44,  494 

Stoessiger  v.  Southeastern  Railway  Co. 

IL  316 

Btokes  V.  Brown  I.  76 

V.  Forman  II.  615 

Stone,  Ex  parte  II.  613 

V.  Chambcrlin   I.  146  ;  IL  160,  200 

V.  Compton  I.  236 

V.  Hubbard  II.  448 

V.  Mnrsh  II.  82 

r.  Metcalf  II.  474,  578 

V.  Seymour  IL  223,  227,  228 

r.  Sprague  II.  623 

V.  Vance  II  469 

Stoner  r.  Ellis  IL  472,  578 

Stones  r.  Butt  11.441 

Stoney  v.  Bcnabien  II.  121 


Storer.  Ex  parte  II.  639,  647 

V.  Coe  IL  410,  414 

V.  Logan    L  282,  294,  296  ;  II.  466 

Storm  V.  Stirling  I.  34,  35 

Storms  V.  Thorn  L  246 

Stothart  r.  Parker  I.  530 

Stott  V.  Alexander  I.  508 

Stoughton  V.  Dimick  II.  636 

V.  Lynch  II.  425 

V.  State  IL  587 

Stout  V.  Ashton  II.  247,  297 

».  Cloud  IL  550,  552,  566 

Stow  V.  Yarwood  IL  616 

Stowe  V.  Colburn  I.  309,  4.30 

V.  Hubbard  II.  444 

Strader  v.  Batchelor        I.  44,  394  ;  II.  68 

Strafford  Bank  v.  Crosby  I.  240 ;  IL 

240,  533 
Straker  v.  Graham       I.  59,  268,  269,  340, 

343,  345 

Strang  v.  AVilson  II.  469 

Strange  v.  Ellison        IL  37,  181,  187,  600 

v.  Lee  II.  229 

V.  Price  L  468,  469 

V.  Wigney     I.  258  ;  IL  257,  259, 

271 

Stranger  v.  Searle  II.  476 

Stratton  v.  Mathews  II.  458,  466 

Straus  V.  Eagle  Ins.  Co.  IL  610 

Strawbridge  v.  Robinson  I.  58 

Strawn  v.  Hook  IL  655 

Streater  v.  Bank  of  Cape  Fear       IL  260, 

261,  313 
Stribbling  v.  Bank  of  the  Valley  II.  408 
Strithorst  v.  Graeme  II.  635 

Stroheckcr  r.  Cohen  I.  299 

Strong  V.  Farmers  &  Mechanics'  Bank 

II.  621 

V.  Foster        I.  229,  234,  237,  326  ; 

II.  ,502,  515 

V.  Hart  IL  15.5,  184 

V.  Riker  II.  124 

Strothcr  r.  Lucas  II.  324 

Strykcr  v.  Vanderbilt  II.  529 

Stuart  V.  Bute  IL  89,  92,  188 

V.  Grecnlcaf  IL  9,  357 

V.  Kirkwall  I.  79 

Stubbs  V.  Goodall  II.  521 

Stuckert  y.  Anderson  1.371,492 

Stump  r.  Napier  II   469 


INDEX   TO    CASES   CITED. 


CIX 


Sturdy  v.  Ilendeison  I.  407  ;  II.  644 

Sturges  V.  Crowninshield         II.  322,  326, 

S.-iO,  361,362,  364,381,  383 

v.  Derrick  I.  492,  528 

V.  Smith  II.  608 

Startevant  v.  Ford  II.  29 

Styles  V.  Wardlo  I.  386,  387 

Sublette  v.  Tinney  II.  639,  640 

Suclcley  V.  Fursc  I.  152,  210 

Suffolk  Bank  v.  Worcester  Bank     II.  394 

Sullivan  v.  Deadman  I-  638 

Tj.  Mitchell  1.311,432 

Sully  V.  Frean  I.  209 

Sumner  v.  Brady  I.  216 

r.  Ford  1.310,429 

Susquehanna  Bridge,  &.c.  Co.  v.  Evans 

II.  519 

Sussex  Bank  v.  Baldwin  I.  357,  358,  359, 

421,  425,  470,  511,  512,  513,  514, 

516,  589,  596,  600,  601,604,  619 

Sidney  College  v.  Davenport 

I.  171 

Sutcliffe  V.  M'Dowell        I.  539,  540,  546, 

552,  584  ;  II.  59 

Suter  V.  Sheeler  II.  651 

Sutton  V.  The  Albatross  II.  161,  172, 

176,  177 

T.  Gregory  I.  641  ;  II.  495 

V.  Toomer     11.  549,  565,  573,  644 

V.  Warren  I.  88  ;  II.  447 

Suydam  v.  Barber  I.  251  ;  II.  375 

V.  Bartle  II.  410 

V.  Vance  I.  240  ;  II.  245 

V.  Westfall  II.  410,  433 

Swain  v.  Ettling  II.  494 

Swanr.  Chandler  I.  215 

V.  Cox  1.301,  302;  II.  517 

V.  Steele  I.  127,  137 

Swansey  v.  Brock  I.  303 

Swartwout  I'.  Payne  11.417 

Swasey  v.  Vanderheyden  I.  68,  69 

Swayne  v.  Wallinger  II.  631 

Sweat  V.  Hall  I.  89  ;  II.  447 

Sweet  V.  James  II.  176 

Sweeting  i;.  Fowler  I.  35 ;  II.  4,  480 

V.  Halse        I.  328 ;  II.  565,  568 

Sweetscr  v.  French      I.  29,  125,  127,  140, 

141,  142,  279;  11.43 

Swetland  v.  Crcigh  I.  47 

Swett  V.  Dodge  II.  372,  376 

J 


Swift ».  Beers  II.  107 

V.  Crocker  I.  244 

V.  Ellsworth  II.  438 

T.  Stevens  11.293,297,305,306,307 

V.  Tyson         I.  221,  223,  257  ;  II.  43 

Swinyard  v.  Bowes  I.  503 

Sydnor  v.  Gascoigne  I.  639 

Sykes  v.  Lewis  II.  610 

Sylvester  v.  Crapo  I.  264,  265,  269. 

377,  378 

r.  Downer  II.  121,  124,  140,  .348 

V.  Staples  II.  501 

Symonds  v.  Atkinson  II.  293 

r.  Cockerill  11.413 


T. 

Taber  v.  Cannon  I.  93,  116 

Taft  V.  Sergeant  I.  67,  73,  76 

Tagart  v.  Indiana  II.  635 

Talbot  V.  Bank  of  Rochester    I.  321,  322 ; 

II.  485 

V.  Clark  I.  510,  515;  II.  468 

V.  Gay  II.  118,  137 

Talleyrand  v.  Boulanger    II.  319, 356,  367 

Taliiaferro  v.  King  II.  425 

Talmage  v.  Burlingame  11.  246 

Tankersley  v.  Graham  II.  520,  521 

Tanner  v.  Bean  I.  426  ;  II.  473 

V.Hall  1.126 

V.  Smart  II.  648,  652,  660 

Tapley  v.  Martens  II.  86,  155 

Tappan  v.  Bailey  I.  116 

V.  Ely  II.  146,  543,  545 

V.  Kimball  II.  658 

V.  Poor  II.  326 

Tarbell  v.  Sturtevant  I.  192  ;  II.  437 

Tariii  v.  Morris  II.  458 

Tarleton  v.  Alihusen  II.  155,  232 

V.  Shingler  II.  565 

Tartar,  The  II.  174 

Tarver  v.  Nance        I.  464,  538,  542,  550 

Tasscll  T.  Cooper  II.  64 

V.  Lee  n.  71 

V.  Lewis  1.391,401,402;  11.41,45. 

Tate  V.  Garland  II.  636 

V.  Ililbert  L  178,  287  ;  IL  56,  61,  82, 

210 
Tate  V.  Wellings  II.  409 


ex 


INDEX   TO   CASES   CITED. 


Tatlock  J.  Harris     I.  32,  336  ;  II.  50,  51, 

585,  592 
Taunton  Bank  v.  Richardson  I.  585,  589  ; 

II.  316 

Tayloe  v.  Riggs  II.  305 

V.  Sandiford  II.  222,  223 

Taylor's  Case  (1  Car.  &  K.)  II.  69 

(1  Lcacli)  II-  585 

Taylor  v.  Bank  of  111.         I.  497,  643,  647 

V.  Bales  I-  334 

V.  Beck  I.  237  ;  II.  469 

r.  Briggs  11.155,184 

V.  Croker    I.  70,  321 ;  II.  3,  482, 

484 

T.  Dobbins  I.  23 

».  French      I.  572,  575,  582,  539  ; 

II.  68 

V.  Gallaud  I.  247 

V.  Heriot  I.  244 

V.  Higgins  II.  487 

r.  Jacoby        I.  385,  415;  II,  461 

V.  Jones  I.  596,  614,  623  ;  II.  497 

V.  Kinlock  I.  41 

V.  Kymer  II.  22G 

V.  Luther  II.  468 

V.  McLean  I.  99 

V.  Moseley  IL  577,  579 

V.  Okey  II.  605 

V.  Patrick  I.  196 

V.  Phelps  II.  387 

V.  Rymer  11.  222 

r.  Snyder      L  441,  449,  450,  451, 

454,  456 

V.  Spivey  II.  650 

V.  Stcdman  II.  652 

V.  Talbot  II.  223 

V.  Wilson  IL  68,  85,  86 

V.  Young  L  523,  524;  IL  71 

Tazewell  v.  Whittle  II.  649 

Teaguc's  Case  IL  583,  586 

Tcague  v.  Hubbard  L  137 

Teal  V.  Ayres  IL  636 

Tcall  c.  Felton  IL  315 

Teaz  V.  Chrystie  IL  150,  154,  169 

Tebbctta  v.  Dowd     I.  596,  607,  612,  613, 

621,  622,  623 

Teed  v.  Elwortliy  I.  66 

Tempest  v.  Ord  II.  182 

Temple  r.  Gove  II.  302 

i;.  Puilcn  I.  112,  113,  290;  IT.  12 


Temple  v.  Scaver  I.  145 

Templin  v.  Krahn     II.  291,  304,  307,  448 

Ten  Eyck  v.  Brown  II.  133,  138 

V.  Vanderpoel  I.  198 

r.  Wing  II.  649 

Tennant  v.  Strachan  L  361  ;  II.  210 

Tenney  v.  Prince  IL  121,  124,  131 

Tercese  v.  Geray  II.  297,  302 

Terrel  r.  Townsend  IL  519 

Terry  v.  Fargo  I.  1 1 G 

V.  Parker  I.  463,  534,  537,  557 

Texira  v.  Evans  II.  36 

Thacher  u.  Dinsmore         I.  90,  161,196; 

IL  150,  151,  152 

Thackray  r.  Blackett      L  528,  534,546; 

IL  260,  261 

Thame  y.  Boast  IL  217 

Thames  Haven  Dock,  &c.  Co.  v.  Hall 

IL  453 

Thatcher  v.  Winslow  II.  437,  443 

Thayer  v.  Buffum  L  137  ;  II.  440 

V.  Grossman  II.  467,  469,  470 

V.  King        n.  294,  295,  297,  303 

Theobald  iJ.  Colby  IL  619 

V.  Stinson  II.  647 

Thetford  v.  Hubbard  IL  621 

Thibodeau  v.  Patin  IL  248 

Thicknesse  v.  Bromilow  I.  130 

Thimbleby  v.  Barron         IL  237,  241,  532 

Thing  V.  Libbey  1.  72,  75 

Thomas  v.  Beckman  II.  377 

V.  Bishop  I.  93,  103 

V.  Black  IL  634 

V.  Brinsfield  IL  629 

V.  Dow  I.  241 

V.  Fenton  I.  551  ;  IL  72 

V.  Eraser  I.  251 

V.  Hill  IL  612 

V.  Mason  II.  416 

V.  Newton  I.  186 

V.  Pago  II.  523 

T.  Shoemaker       I.  384,  396,  411 

r.  Todd         IL  38,  91.  101,  102, 

103,  105,  189,  190,  600,  601 

V.  Woods  II.  139 

V.  Young  II.  618 

Thomason  v.  Odum  II.  634 

Thomasson  v.  Boyd  I.  75 

Thomcs  V.  Cleaves  IL  417 

Thompson's  Case  IL  '76 


INDEX    TO    CASES    CITED. 


CXI 


Thompson   v.  Armstrong  I.  188 

V.  Briggs       II.  154,  161,  201 

V.  Brown  II.  229,  231 

V.  Carroll  I.  260 

V.  Cartwright  II.  443 

V.  Clubley  II.  27 

V.  Cook  I.  309 

V.  Crutcher  I.  228 

V.  Dominy  II.  34,  116 

r.  Emery  11.46,50,51, 

52,  53 

t>.  Finden  11.179 

r.  Fisher  II.  647 

V.  Flower        I.  358  ;  II.  453 

V.  Giles  II.  43 

V.  Gilreath  II.  662 

V.  Gordon  II.  641 

r.  Hale  I.  264,  273 

V.  Jones  II.  414 

V.  Ketcham    I.  381,  424  ;  II. 

320,  325,  333,  350,  376, 

379,  504,  532 

9.  Lay  I.  74,  76 

p.  McClelland  II.  603 

V.  Mosely  II.  579 

».  Nesbit  11.406,412 

».  Percival      I.  135;  II.  199, 

202,  218 

V.  Peter  II.  659 

V.  Pitman  II.  83,  84 

V.  Powles  II.  377 

V.  Rawles  II.  530 

V.  Shepherd      II.  27,  29,  493 

V.  Sloan  I.  46 

V.  State  II.  588 

V.  Thompson  I.  244 

V.  Wilson  II.  6,  374 

V.  Woodbridgo      II.  414,  418 

Thomson  v,  Davenport  II.  179 

Thorn  i;.  Kice  I.  484,  496 

Thorndike  v.  Stone  II.  173,  174,  413 

Thorne  v.  Smith  II.  199 

Thornton  v.  Appleton  II.  555 

T.  Bank  of  Washington   II.  421 

t?.  Cri.sp  II.  649 

p.  Crowther  II.  49,  518 

V.  Dick  I.  49,  291 

V.  Illingworth  I.  72 

V.  Rankin  I.  90 

r.  Wynn     I.  205,  595,  605,  618 


Thorp  V.  Raymond 

II.  .637 

Thorpe  v.  Booth 

II.  644 

V.  Peck 

I.  51.5 

V.  White 

I.  197 

Thrall  v.  Newell  IT.  37,  38,  39,  600 

Thrasher  ?;.  Ely  II.  137 

Thrower  v.  Cureton  II.  640 

Thrupp  V.  Fielder  I.  74 

Thurman  v.  Van  Brunt  II.  73,  74,  83 

Thursby  v.  Gray  I.  237 

Thurston  v.  Blanchard  I.  70  ;  II.  151,  206 

V.  Lloyd  L  128 

V.  Lowder  II.  640 

V.  M'Kown  I.  264,  377 

V.  Mauro  I.  96 

Thwaites  v.  Richardson  II.  477 

Tickner  v.  Roberts  I.  601,  620,  635  ; 

11.319,342 

Ticonic  Bank  v.  Johnson  II.  421 

V.  Stackpole  I.  635,  642, 644 

Tidmarsh  v.  Grover  II.  547 

Tiernan  v.  Jackson  I.  330 

Tiley  v.  Courtier  II.  91,  188 

Tiller  v.  Shearer  IL  125 

Tillett  V.  Commonwealth  II.  652 

Tillier  v.  Whitehead  I.  106 

Tillinghast  i;.  Nourse  II.  655,  657 

Tillotson  V.  Grapes  I.  210 

V.  Preston  II.  397 

V.  Rose  II.  638 

Tillou  V.  Britton  L  230  ;  IL  617,  620 

V.  Clinton  &  Essex  Mut.  Ins. 

Co.  II.  577 

Timminsv.  Gibbins  IL  96,  104,  106,  191, 

192 
Timms  v.  Delisle  I,  483 

Tindal  v.  Brown  I.  269, 471,  503,  507,  509, 
533,  629,  630  ;  IL  239,  249,  490 
r.  Taylor  IL  34 

Tindall  v.  Childress  IL  301 

Tinker  v.  McCauley  I.  44  ;  II.  133 

Tinkum  v.  Duncan  II.  139 

Tinnen  v.  Mebane  II.  629,  630,  640 

Tinsley  v.  Beall  II.  604 

Tinson  v.  Francis  II.  230 

Tippets  V.  Heane  II.  654 

Tisdale  v.  Mitchell  IL  641 

Titcomb  v.  Thomas  II.  53,  453 

Titford  V.  Knott  IL  477 

Tittle  V.  Thomas  I.  34 


cxu 


INDEX   TO   CASES   CITED. 


Titus  r.  Hobart  II.  327,  367 

Tobey  v.  Barber  II.  155, 162, 182, 217, 36.5 
V.  Lennig  I.  476 

Toby  c.  Maurian  I.  364 

Todd  V.  Stafford  II.  470 

V.  Todd  II.  647 

Tolbert  v.  Harrison  II.  233 

Tombeckbe  Bank  v.  Stratton  11.  250 

Torabeckbee  Bank  v.  Dumell  I.  146, 

148,  312 

Tomkins  v.  Ashby  I.  25 

Tomlin  v.  Lawrence  (3  Moore  &P.)  I.  201 

Tomlins  v.  Lawrence  (6  Bing.)        II.  564 

Tomlinson  v.  Gill  IL  132 

V.  Spencer  II.  471 

Tompkins  v.  Brown  II.  652 

Toms  V.  Powell  II.  458 

Tooke  V.  Hardeman  II.  629 

V.  Ilollingworth  II.  164 

Tooker  v.  Bennett  I.  249 

Toosey  v.  AVilliams  II.  496 

Tootell,  Ex  parte  I.  39 

Topham  v.  Braddick  II.  644 

V.  Chapman  II.  360 

Toppan  V.  Jenness  II.  616 

Torrey  v.  Baxter  II.  153 

V.  Fisk  II.  567 

V.  Foss  L558;  IL  291,  296, 

303,  307 

i;.  Grant  IL  420 

Toulmin  v.  Price  II.  287 

Touro  r.  Cassin  11.318 

Touscy  V.  Kobinson  II.  406 

Tower  v  Appleton  Bank  II.  308 

V.  Durell  L  595,  620 

Townend  v.  Downing  II.  466 

Townley  r.  Crump  II.  165,  166 

Towns  V.  Mead  II.  634 

Townsend  v.  Bush  II.  419,  469 

V.  Cowles  IL  138 

V.  Deacon  II.  635 

r.  Derby  I.  193,  228 

r,  Jemison  11.381,383 

r.  Lorain  Bank        I.  470,  472, 

476,477 

r.  Riddle     I.  236,  237;  IL515 

Townsley  r.  Sprinf^er  I.  510 

r.  Sumrall         1.221,298,337, 

6.34,  635  ;  II.  342 

Towson  V.  Havre  dc  Grace  Bank      II.  92 


Tracy  v.  Pearl 

II  153 

V.  Wikoff 

IL  223 

Trapp  V.  Spearman 

II.  547,  582 

Trasher  v.  Everhart 

n. 

320,  366,  368 

Trask  v.  Martin 

L  405,  406 

V.  Roberts 

L  99 

V.  Vinson 

L  204,  210 

Treadway  v.  Drybread 

IL  244 

Treadwell  v.  Moore 

II.  653 

Treat  v.  Cooper 

IL  147 

V.  Stanton 

IL  425 

Treble's  Case 

IL  547,  585 

Trecothick  v.  Edwin 

L  307,  428 

Tredick  v.  Wendell 

L367 

Trenthan  v.  Deverill 

IL  663 

Trent  Navigation  Co.  v 

.  Harley       IL  247 

Treon  v.  Brown 

IL  469, 498 

Treswaller  v.  Keyne 

IL  235 

Treuttel  v.  Barandon 

L17;  IL  22,  29, 

43,  210,435 

Tricksy  v.  Lame 

1.208 

Trigg  V.  Drew 

IL  620 

V.  Taylor 

II. 

549,  573,  577 

Triggs  V.  Ncwnham 

I. 

418,420,  641 

Trimbey  v.  Vignier    I. 

642 

IL  318,  325, 

326,  329,  336,  346, 

354, 

355,  368,  374 

Trimble  v.  Thome      I. 

596, 

601,  604,  619, 

623,  624  ;  II. 

242, 

243,  244,  248, 

459,  497 

Triplett  v.  Hunt 

I. 

504,  513,  515 

Tripp  V.  Swanzey  Paper  Co 

I.  95,  118 

Trotter  v.  Crockett 

II.  160,  218 

V.  Curtis 

IL  410,  433 

Troutman  v.  May 

II.  663 

Trowel  v.  Castle 

IL  576 

Troy  City  Bank  v.  Lauman 

II.  484 

True  V.  Andrews 

IL  657 

V.  Collins 

L486 

V.  Fuller 

IL  133 

V.  Thomas 

IL  71,  87 

Truoman  v.  Hurst 

Lns 

Truchdcll  V.  Callaway 

11.  167 

Truott  V.  Chai)!in 

L  199 

Trumball  v  Tilton 

II.  655 

Trundy  v.  Farrar 

L  100 

Trusrott  v.  Davis 

11.427 

Trust,  Ex  parte 

II.  309 

Trustees,  &c.  v.  Kendr 

ck 

II.  151 

in  Fryeburg  v 

(.Osgood 

11.  656 

INDEX    TO   CASES   CITED. 


CXUl 


Trustees,  &c.  in  Hansou  v.  Stetson  II.  .512 
of  Ministerial  a'ld  School  Fund 

in  Levant  v  Parka        II.  4.50 

of  Schools  V.  Wright       II.  168 

Tryonv.  DeHay  11.120 

V.  Hart  I.  248 

V.  Oxlcy  I.  273  ;  II.  74 

Tubb  V.  Madding  II.  569 

Tuck  V.  Tuck  II.  602 

Tucker  r.  English  I.  26 

V.  Maxwell  I.  45 

V.  Morrill  I.  189 

V.  Pruett  II.  453 

V.  Randall  II.  463 

V.  Wilamouicz  II.  419,  467 

Tuckerman  v.  Hartwell      I.  311,  433,  434 

V.  Newhall        I.  247  ;  II.  237 

Tuft's  Case  I.  32  ;  II.  585 

Tullock  V.  Dunn  II.  659 

Tumraer  r.  Oddie  I.  291 

Tunno  v.  Lague  I.  505,  531 

Tunstall  v.  Walker  I.  490,  494 

Tupper  V.  Powell  11.416 

Turnbull  v.  Freret  I.  156 

V.  Gadsden  II.  640 

V.  Strohecker  II.  617 

V.  Trout  11.7,23,131,521 

Turner  v.  Billagram  II.  572 

V.  Brown  I.  192 

V.  Davies  II.  254,  537 

V.  Greenwood  I.  643 

V.  Hayden  I.  309,  329,  426 

V.  Hickey  II.  162 

V.  Leach  (Chitty  on  Bills)     I.  532 

V.  Leech  (4  B.  &  Aid.)        I.  504, 

514,  532 

V.  Miller  II.  424 

V.  Rogers  I.  637,  640,  644 

V.  Ross  II.  658 

V.  Shearer  II.  636 

V.  Smith  II.  640 

V.  Stones         IL  96,  97,  103,  104, 

183,  187,  191,  192,  194 

Turney  v.  Dodwell  II.  655 

Turpin's  Case  II.  82 

Turpin  v.  Povall  II.  416 

v.  Thompson  II.  54 

Tuthill  V.  Davis  II.  467,  470 

Tutt  V.  Hobbs  I.  98 

Tuttlew.  Bartholomew  II.  53,  133,  135, 136 

Vol.  l.—H  j* 


Tuttlc  V.  Clark 

11.414 

V.  Cooper 

L249;  II.  481 

V.  Fowler 

I.  86 

V.  Mayo 

11.94 

Twine's  Case 

II.  45 

Twopenny  v.  Young  L  245,  249  ;  II.  246 

Tye  V.  Gwynne  L  207,  21 2 

Tylee  v.  Yates  II.  107 

Tyler  v.  Binney  IL  53,  133,  135,  485 

V.  Stevens  II.  1.32 

V.  Trabue  II.  320 

V.  Young  I.  210,  268 

Tyson  v.  Britton  II.  646 

V.  Rickard  II.  407 


u. 

Ubsdell  V.  Cunningham  I.  39 

Udal  V.  Walton  II.  82 

Ulen  V.  Kittredge  IL  124,  131,  521 

Ulster  Co.  Bank  v.  McFarlan  I.  294,  296, 
298,  299;  H.  109 
Underwood  r.  Simonds     IL  511,  526,532, 

535 

Union  Bank  v.  Brown  I.  497 

V.  Can-  II.  564 

V.  Ellicott  II.  91 

V.  Fowlkes  I.  639,  646 

V.  Grimshaw        I.  504,  596, 

598,  600,  622 

V.  Hall  II.  247 

V.  Hyde        I.  499,  576,  582, 

642,  643,  647  ;  11.  329, 

499,  516 

V.  Lea  I.  499 

V.  Magruder  I.  591 

V.  Osborne  II.  301 

V.  Stoker  L  497 

r.  Warren     IL  298,  299,301, 

313 

V.Willis         L363;  IL  121, 

124,  520 

of  La.  V.  Coster  IL  109,  132, 

140 

of  Tenn.  v.  Smiser      II.  153 

U.  S.  V.  Bank  of  the  Metropolis  I.  44 

V.  Barker  I.  152,  216,  337,  343, 

346,  358,  487,  509,  510,  513,  531  ; 

IL  30,  32,  220,  442,  452 


CXIV 


INDEX    TO    CASES    CITED. 


U.  G.  V  Boice  IT.  452 

V.  Bradbury  II.  222,  227,  228 

v.  Britton  II.  292 

V.  Buford  II.  45 

V.  Foye  II.  588 

T.  Hodge  I.  245 

r.  Kirkpatrick        II.  224,  226,  227, 

228,  230 

V.  La  Jeune  Eugenie      11.  318,  321 

T.  Leffler  II.  468 

r.  Linn  II.  553,  577,  580 

V.  Prentice  II.  620 

V.  Simpson  I-  237 

V.  Spalding  XL  574 

p.  Thompson  I.  247  ;  II.  503 

i;.  U.  S.  Bank  II.  590 

V.  Wardwell  II.  225 

c.  White  L  33 ;  II.  45 

V.  Williams  II.  605,  663 

C.  S   Bank  v.  Bank  of  Georgia        II.  99, 

186,  188,   195,   196,  203, 

285,  594,  596,  599,  600 

V.  Binney  I.  132,  133 

».  Chapin  IL  371 

V.  Davis  I.  514 

V.  Donnally    IL  354, 356,  366 

r.  Fleckner  I.  173 

V.  Goddard  I.  515 

r.  Owens  II.  434 

r.  Sill     IL  100,  258,  312,  314 

r.  Smith  1.309,311 

V.  Southard   I.  596,  601,  606, 

612,  619 

d.  S.  Trust  Co.  V.  Harris  IL  614 

Upham  V.  Lefavour  II.  228 

V.  Prince  IL  53,  135 

Upstone  V.  Marchant  II.  550 

Upton  V.  Ferrers  II.  393 

V.  Starr  II.  452 

Urquhart  V.  Taylor  I.  156 

Usborn  v.  Lark  in  II.  522 

Usher  v.  Dauncey  I.  145  ;  II.  1 1,  13 

e.  Gaither  II.  207 

Uthcr  V.  Rich        I.  258  ;  IL  28,  187,  272, 

273,  274 

Utica  Bank  r.  Ganson  II.  445 

Ins.  Co.  V.  Bloodgood  II.  421 

r.  Kip  1.217 

V.  Tillman  II.  412 


V. 


Vail  V.  Foster  H.  153,  160,  168,  169 

Vain  V.  Whittington  II.  286 

Vairin  v.  Hobson  II.  275,  277 

Valentine  v.  Farrington  I.  237 

V.  Packer  I.  100 

Valette  v.  Mason  I.  223 

Valk  V.  Bank  of  South  Carolina       I.  499 

V.  Gaillard  I.  500 

V.  Simmons       I.  537,  544,  548,  549, 

647  ;  IL  71 

Vallett  V.  Parker     I.  50,  51,  279  ;  II.  480 

Van  Alstyne  v.  Van  Slyck  I.  251 

Vanauken  v.  Hornbeck    II.  287,  293,  298, 

309 

Van  Benschooten  v,  Lawson  II.  425 

Van  Bibber  v.  Louisiana  Bank        II.  592 

Van  Brunt  v.  Van  Brunt  II.  574 

Van  Buren  v.  Webster  II.  648 

Vance  v.  Collins  11.  465,  488 

V.  Depass  I.  492 

V.  Funk  IL  480 

V.  Ward  I.  294 

V.  Wells  I.  79 

Van  Cleef  v.  Thcrasson  II.  342,  365 

Vandcr  Donckt  v.  Thelluson  I.  427 

Van  Derveer  v.  Wright      I.  197  ;  II.  136, 

139 
Vandewall  v.  Tyrrell  I.  317,  320 

Van  Doren  v.  Todd  II.  167 

Van  Duzcr  v.  Howe  I.  280  ;  II.  1 1 

Van  Eps  v.  Dillave  IL  154,  161 

Van  Hoescn  v.  Van  Alstyne    I.  264,  268, 
269,  382,  519 
Van  Hook  v.  Whitlock  II.  326 

Van  Home  v.  Dorrance  II.  580 

Van  Keuren  v.  Parmclce  II.  657 

Van  Ness  v.  Forrest  IT.  450,  451 

Van  Raugh  v.  Van  Ansdaln    IT.  325,  343, 

360,  361 

Van  Reimsdyk  v.  Kane      I.  298  ;  II.  318, 

319,  320,  369,  518 

Van  Rensselaer  v.  Roberts  II.  2'.'5 

Van  Schaack  v.  Stafford       II.  427,  469, 

470 
Van  Schaick  v.  Edwards      II.  318,  325, 

337,341 
Vaniixem  v.  Hazelhursts  II.  361 

Van  Vactcr  r.  Flack  I.  45 


INDEX   TO   CASES   CITED. 


CXV 


Van  Valen  v  Lapbam 

II.  618 

Van  Vechten  v.  Pruyn 

I.  479,  488 

Van  Vleet  v.  Adair 

11.96 

"Van  Vronkcr  v.  Eastman 

II.  425 

Van  Wagner  v.  Terrett 

I.  44 

"Van  Wart  v.  Smith      I 

531 

',  543;  II.  183 

V.  Woolley 

I.  347,  503  ;  II. 

137,  139,  183 

Vardeman  v.  Lawson 

II.  630 

Varick  v.  Crane 

II.  414 

Varner  v.  Nobleborough 

I.  44,  63  ;  II. 
152,  153 

Varney  v.  Brewster 

II.  618 

V.  Grows 

II.  634 

Varnum  v.  Bellamy 

I.  221 

V.  Miiford 

I.  240,  246 

Vathir  v.  Zane 

I.  189 

Vatterlien  v.  Howell 

I.  222 

Vaughan  v.  Fuller 

I 

.  615;  II.  479 

Vaught  ».  Wellborn 

II.  616 

Veazie  v.  Willis 

n 

119,  143,  589 

Bank  v.  Paulk 

II.  427,  461 

V.  Winn 

I. 

411,  413,  414; 

II.  68,  72,  462 

Ventris  v.  Shaw 

II.  649 

Vere  v.  Ashby 

I.  143 

V.  Lewis      I.  32  ; 

II. 

50,  487,  585, 
592 

Vermont  State  Bank  v. 

Porter        II.  364 

Vernon  v.  Boverie 

11.85,216 

V.  Han  key 

11.82 

V.  Manhattan  Co. 

I.  135 

Vice  V.  Anson 

II.  151 

Vidal  V.  Thompson    I. 

399 

;  II.  318,  324, 
331,  344 

Viele  V.  Hoag 

I.  241 

Vilas  V.  Jones 

I.  240 

Viles  v.  Moulton      II. 

294, 

298,  304,  309 

Vincent's  Case 

II.  210 

Vincent  v.  Gandolfo 

II.  618 

V.  Horlock 

II.  15,  439 

Vinson  v.  Piatt 

II.  376 

Violett  V.  Patton      I.  109  ; 

II.  10,  27,  348 

Virgin,  The 

II.  173 

Visher  i'.  Webster 

II.  550 

Voight  V.  Rambo 

II.  427 

Volunteer,  Schooner 

II. 

165,  169,  170 

Von  Hemert  v.  Porter 

11.425,  426 

Vore  V.  Hurst 

II. 

120,  123,  124 

Vose  V.  Handy 

11.53 

Vose  V.  Philbrook  II.  609 

Vrecland  v.  Blunt  I.  336 

V.  Hyde      I.  268,  269,  377,  378, 

380,  563 


w. 

Wackerbath,  Ex  parte  I.  313,  318 

Wade's  Case  I.  230;  II.  190 

Wade  V.  Killough  I.  204 

V.  N.  O.  Canal,  &c.  Co.  II.  294,  298, 

304, 303 

V.  Scott  I.  209 

V.  Simeon  I.  198 

V.  Staunton  I.  245  ;  II.  533 

V.  Wade  II.  294,  305 

V.  Wilson  II.  418 

Wadsworth  ».  Sharpsteen  I.  151 

v.  Smith  I.  209 

V.  Thomas  II.  648 

Wagman  v.  Hoag  I.  241 

Wagner  v.  Kenner  I.  384,  409,  410 

Wagnon  v.  Clay  I.  140 

Wagstaff,  Ex  parte  II.  613 

Wakeman  v.  Vanderbilt  II.  616 

Wain  V.  Bailey  I.  428  ;  II.  84,  216, 

289,  296 

V.  Warlters  II.  127,  128,  131 

Wainman  v.  Kynman  11.  651,  653 

Wainwright  v.  Webster    II.  103,  105,  193 

Waite  V.  Foster  I.  148 

Waithman  v.  Elsee  T.  25 

Wake  V.  Tinkler  II.  605 

Wakefield  r.  Newbon  II.  493 

T.  Stedman  II.  502 

Wakemen  v.  Sherman      II.  649,  652,  661 

Walbridge  ?7.  Arnold  I.  196 

Waldo,  The  II.  170 

Waldo  Bank  v.  Lumbert  I.  125 

Waldridge  v.  Kennison  II.  479 

Walker  r.  Atwood  1.312 

T.  Bank  of  Augusta  I.  498 

V.  Bank  of  Montgomery  Co. 

I.  326,  503,  505,  506  ;  II.  250 
r.  Bank  of  Washington  11.420 
V.  Barnes  II.  214,  399,  624 

V.  Brown  II.  625 

V.  Butler  II.  ^53,  655 


cxvi 


INDEX   TO   CASES   CITED. 


Walker  17.  Chovin 
V.  Clay 
V.  Clements 
V,  Constable 
V.  Davis 
V.  Eyth 
V.  Forbes 
V.  Geisse 
V.  Goodrich 
V.  Kimball 


II.  609 

II.  513 

II.  642 

II.  392 

I.  255 

n.  608 

II.   139,  352 

I.  221  ;  II.  69 

II.  641 

II.  424 


V.  Laverty      I.  596,  601,  603,  621 

V.  Lide  I.  285 

V.  Macdonald  II.  485 

V.  Patterson  I.  161 

V.  Perkins  I.  214 

v.  Russell  II.  529 

V,  Sherman  II.  127 

v.  State  Bank  I.  352 

V.  Walker  I.  569,  596,  622 ; 

II.  457 

».  Warfield  11.475 

T.  Wills  II.  393 

V.  Wootten  II.  649 

Wallr.  Bry  1.576,578,581,586 

Wallace  v.  Agry         I.  264,  297,  298,  337, 

340,  341,  342,  345,  3.50, 

351  ;  II.  154,  180,  340 

V.  Branch  Bank  I.  107,  189 

V.  Dyson  I.  45 

V.  Hardacro         I.  215  ;  II.  5,  593 

V.  Kelsall  II.  82,  608 

V.  M'Connell         I.  229,  309,  310, 

429 

T.  Small  II.  479 

Waller  v.  Lacy  II.  653 

Walls  V.  M'Gee  II.  663 

Walmesiey  v.  Cooper  I.  250  ;  II.  238 

Walinsley  v.  Child    II.  287,  296,  297,  306 

Waipole  V.  Pulteney  I.  325 

Walrad  v.  Petrie  I.  34 

Walsh  V.  Bailio  II.  246 

V.  Farrand  II.  361 

V.  Nourse  II.  359,  361 

Walter  v.  Haynes  I.  486 

V.  Kirk  I.  410  ;  II.  446,  461 

r.  Trustees  of  Schools         IT.  482 

Waltermirc  v.  Westover  II.  631 

Walters  v.  Brown  I.  478,  482,  483 

V.  Short  II.  577 

V.  Swallow  II.  246 


Walton  V.  Adams  U.  293 

V.  Bemiss  II.  153,  160,  162 

V.  Dodson  II.  132 

V.  Hastings  II.  550,  568,  574 

v.  Mascall  II.  137 

V.  Robinson  II.  6.t8 

V.  Shelley  11.  468,  469,  470 

V.  Watson  I.  529 

Walwyn  v.  St.  Quintin      I.  540,  541,  542, 

543,  630;  II.  27,  218, 

240,  455,  485,  533 

Wamsley  v.  Lindenberger  I.  77 

Wankford  v.  Wankford  I.  162 

Ward  V.  Allen     I.  282,  285,  298  ;  11.  489 

V.  Bank  of  Kentucky    I.  115  ;  II.  7 

V.  Cole  II.  636 

V.  Evans      II.  85,  91,  105,  154,  155, 

156,  159,  183,  184,  209,  216,  602 

V.  Howe  II.  153 

V.  Johnson  I.  249 

V.  Turner  II.  54 

V.  Winship  II.  528 

Warden  v.  Howell  I.  224  ;  11.  28 

V.  Hughes  II.  29 

Wjirder  v.  Arell    I.  57  ;  II.  318,  322,  364, 

365 

r.  Carson  I.  507 

V.  Tucker     I.  537,  554,  556,  571, 

607,  647 

Wardlaw  v.  Gray  II.  297 

Ware  v.  Adams  II.  1 26 

V.  Key  II.  444 

Waring  v.  Cunliffe  II.  423 

V.  Smyth  II.  573 

Warner  v.  Beardsley  I.  237  ;  II.  248 

».  Price  11.515 

T.  Spencer  II.  545 

V.  Van  Alstyne  II.  167 

V.  Whittaker  II.  46,  51 

Warnick  v.  Crane  I.  641 

Warren  v.  Allnutt  I.  311 

V.  Coombs         I.  57,  662  ;  II.  324 

V.  Crabtree  II.  420 

V.  Gilman     I.  255,  472,  483,  516  ; 

II.  456 

t'.  L.ayton  II.  550,  577 

V.  Lynch  II  320,341,  366 

V.  Mains  II.  91,  92 

V.  Merry  II.  467 

T.  Walker  II.  648 


INDEX   TO   CASES    CITED. 


cxvn 


Warren  r.  Wheeler  II.  24 

Academy  v.  Starrett  II.  512,  524 

Ba  ik  V.  Suffolk  Bank  I.  480 

"Warrender  v.  Warrender  II.  318 

Warring  v   Williams  II.  553 

Warrington,  Ex  parte  II.  401 

V.  Early  II.  545,  549 

V.  Furbor        1.446;  II.  118, 

137,  139 

Warwick  v.  Bruce  I.  66 

V.  Nairn  I.  208 

V.  Rogers  II.  61,  564 

Warwicke  ».  Noakes  11.315 

Washband  v.  Washband  II.  393 

Washburn  v.  Goodman  I.  144 

V.  Picot  I.  209 

V.  Ramsdell    I.  255  ;  II.  9,  472 

Washington  v.  Planters'  Bank  I.  310 

Bank  v.  Prescott  II.  225 

V.  Shurtleff  II.  140 

143,399 

County  Mut.  Ins.  Co.  v. 

Miller  1. 41 

Wasson  v.  Gould  II.  425 

Waterbury  v.  Sinclair  II.  120 

Waterman  v.  Vose  II.  550,  562 

Waters  v.  Bank  of  Georgia  II.  93,  298,  308 

V.  Carleton  I.  45 

V.  Paynter  II.  474 

V.  Simpson  I.  239  ;  II.  533 

V.  Tompkins  II.  653 

Watervliet  Bank  v.  White         I.  96,  170  ; 

II.  442,  595 

Wathcn  v.  Blackwell  I.  470 

Watkins  v.  Crouch    I.  310,  311,  432,  433, 

563,  565,  567 

V-  Halstead  I.  79 

C.Hill  11.151,205 

V.  Hopkins  II.  620 

r.  Kirkpatrick  II.  519 

V.  Maule      I.  158,  160;  II.  5,  16 

V.  Morgan  II.  394 

V.  Stevens  II.  652,  654,  661 

V.  Vince  I.  92 

V.  Zane  II.  607 

Watkinson  v.  Bernadiston  II.  170 

Watriss  v.  Pierce  I.  236,  238,  239 ;  II.  377 

Watson's  Case  II.  491 

Watson  V.  Bailey  II.  471 

V.  Bourne    II.  319,  359,  360,  361 


Watson  V.  Brewster  II.  318,  327,  368,  381 

V.  Cabot  Bank  I.  224 

V.  Duke  of  Wellington         I.  33C. 

V.  Flanagan  I.  261  ;  II.  9 

V.  Hurt  II.  120,  521 

V.  Loring        1.351  ;  11.214,  463 

V.  McLaren  II.  119,  130,  132 

V.  Orr  II.  318 

V.  Owens  II.  154,  200 

V.  Poulson  II.  69,  72 

V.  Randall  II.  132 

V.  Tarpley  I.  350 

V.  Templeton  I.  499 

r.  Wells  11.167 

Watts'  Case  II.  585 

Watt  V.  Hock  II.  653 

V.  Mitchell  I.  569 

V.  Riddle  I.  650,  660 

Walters  v.  Smith  II.  217 

V.  Devor  II.  657,  659,  661 

V.  Rces  II.  612 

Waugh  V.  Bussell  11.  568,  574 

Way  V.  Bassett  II.  644 

V.  Cutting  II.  639 

V.  Richardson  II.  437,  438 

V.  Sperry  II.  383,  635 

Waydell  v.  Luer    II.  41,  159,  160,  200,202 

Waynam  v.  Bend  II.  685 

Wayne  v.  Kirby  11.  245,  533 

Weakly  v.  Bell     I.  497  ;  II.  150,  184,  204 

Wearse  v.  Peirce  I.  200 

Weathered  v.  Smith    I.  277  ;  II.  267,275, 

279 

Weatherhead  v.  Boyers  II.  408 

Webb's  Case  II.  585 

Webb  V.  Burke  I.  94 

V.  Fairmaner  I.  405,  416 

V.  Morgan  II.  443 

z).  Spicer  11.144,237,533,5.37 

Webber  v.  Cochrane  II.  648 

V.  Williams  College     I.  117,  167 

Webster  v.  Cobb  II.  120,  124,  132 

V.  Kirk  II.  642,  643 

t'.  Lee  L  261  ;  II.  9,  215 

V.  Vickers  IL  469 

V.  Webster  II.  645 

Weed  V.  Bond  I.  276 

V.  Carpenter  II.  16    594 

V.  Clark  L  44  ;  II   132 

V.  Miller  I  664 


cxvm 


INDEX   TO   CASES   CITED. 


Weed  V.  Richardson 

V.  Snow 

V.  Van  HoQten 
Weeks  v.  Pryor 
Wegersloffe  v.  Keene 
Weidler  v.  Kauffman 
Weidman  v.  Kohr 
Weir  V.  Cox 


I.  126 

n.  154, 218 

I.  310 

I.  264,  268 

I.  312 

I.  45 

II.  472 

1.327 


Weisser  v.  Denison  IL  212,  589,  594 

Welby  V.  Drake  I.  245  ;  II.  217 

Welch  V.  Lindo  L  358  ;  II.  220,  442 

T.  Watts  II.  493 

Weld  V.  Gorham  I.  369 

Weldon  v.  Buck  I.  351  ;  II.  463 

Wellborn  v.  Rogers  II.  630,  634 

Wellman  v.  Southard        II.  651,  657,  659 

Wells  V.  Brigham  I.  44 

V.  Girling  11.414,515 

«.  Hopkins  I.  206 

D.Jackson  11.120,519 

V.  Masterman  I.  1 25 

».  Porter  11.419 

».  Ragland  11.642 

r.  Tucker  I.  179;  II.  54 

r.  Washington  II.  254 

V.  Whitehead      I.  57,  634,  642  ;  II. 

312,  324, 473 

».  Wopdley  1.410 

Welsh  V.  Barrett  II.  298,  305,  495 

V.  Carter  I.  205 

Welton  V.  Adams     I.  26  ;  II.  34,  298,  304, 

308 

V.  Scott  II.  520 

Wemple  v.  Dangerfield  I.  511,  512 

Wendell  v.  George  II.  470 

Wcndiiiaifs  Case  11.  45 

Weninan  v.  Mohawk  Ins.  Co.    II.  643,  644 

Wentworth  v.  Goodwin  I.  210 

Were  v.  Taylor  II.  592 

Wcrnwiig  V.  Mothershead  II.  392 

Wcsling  V.  Noonan  II.  f.22 

Wesson  V.  Carroll  II   502 

West  V.Brown  1.422,423,511,512 

».  Foreman  I.  45 

V.  Kelly  II.  512 

V.  Patton  II.  297,  310 

V.  Penny  I.  73 

r.  Sloan  II.  640 

r.  Valley  Bank  I.  660 

Boylston  Manuf.  Co.t>.  Soiirlc  II.  450 


West  Branch  Bank  v.  Fulmer  I.  523 

V.  Moorehead   II.  223 

Cambridge  v.  Lexington  11.318,319 

Westerdell  r.  Dale  11.170 

Western  u.  Pollard  11.518 

V.  Wilmott  II.  480 

Bank  v.  Kyle  II.  505 

West  Feliciana  R.  R.  v.  Stockett   11.  633, 

645 
Westminster  Bank  v.  Wheaton        I.  271  ; 

II.  68 

Weston  V.  Barker  11.  50,  62 

V.  Chamberlain  II.  515 

V.  Hight  II.  56,  309 

Wethey  v.  Andrews  I.  264,  268,  379 

Wetumpka,  &c.  R.  R.  Co.  v.  Bingham 

I.  63,  94 
Wetzel  V.  Sponsler  I.  238 

Whaley  v.  Houston  I.  537,  542,  639  .; 

n.  72 

Wharton  v.  Hopkins  11.  604 

V.  Wright  I.  496 

Whatley  v.  Tricker  I.  324 

Wheat  V.  Kendall  I.  235 

Wheatley  v.  Williams  I.  21 

Wheaton  v.  Wilmarth  I.  473 

Wheeler  v.  Field    1. 443,  451 ,  452,  453, 459 

V.  Guild   I.  51.  261;  n.  275,  604 

V.  Lewis  IL  141,  142 

V.  Pope  IL  376 

V.  Raymond  II.  388,  604 

r.  Schroeder      IL  150,  153,  175, 

176,  186 

V.  Stono  L  290 

V.  Wasliburn  I.  241 

V.  Webster  L  289  ;  II.  569, 

6.35,  636 

r.  Wheeler  L  158,  245,  .334  ; 

IL  6,51,  52,  2 1 7 

Whcelock  v.  Doolittle  II  653 

V.  Freeman      II.  146,  502,  540, 

.542,  546,  572,  582,  583 

Wliidden  V.  Scelyo  II.  334 

Whipple  V.  Stevens  II.  406,  658 

Whiston  V.  Stodder  II.  318,  320,  323 

Whitakcr  v.  Bank  of  England         I.  419  ; 

II.  213,  252 

V.  Brown    L  124,  125,  126,  128  ; 

II.  472 

V.  Edmunds  (I  A.  &  E.,  II  494 


INDEX   TO   CASES    CITED. 


CXIX 


VVnitaker ?j.  Morris  1.591,596 

V.  Morrison  I.  596,  609  ;  II.  496 
V.  Whitaiicr  I.  86 

Whitbeck  v.  Van  Ness  II.  41,  98,  151, 
156,  183,  192,  193 

Whitcomb  v.  Smart  II.  449 

V.  Whiting  II.  656,  658 

V.  Williams  II.  151 

White,  Ex  parte  II.  557 

V.  Ambler  II.  73 

V.  Brown  II.  291,  306,  310 

V.  Canfield  II.  367 

V.  Casanave  II.  167 

V.  Case  II.  141 

T.  Doui^herty  II.  168 

V.  Dow  II.  649 

».  The  Governor  11.602,619 

r.  Green  II.  602 

».  Guthrie  11.91,193 

r.  Hale  II.  656,  657 

v.  Hass  II.  548,  572,  577 

V.  Heylman  II.  45,  46 

V.  Hopkins  II.  250 

V.  Howland  I.  238;  II.  118,  132 
r.  Joy  I    155 

T.  Kibling  I.  261  ;  II.  467,  470 
V.  Latimer  XL  634,  637 

V.  Ledwick  I.  193 

r.  McDowell  11.162 

V.  Mallord  II.  302 

r.  Nortii  I.  24 

r.  Palmer  11.211 

V.  Richmond  I.  47 

V.  Springfield  Bank  1.221  ;  11.493 
V.  Stoddard  I.  360,  444,  559 

V.  Trumbull  II.  224,  226 

V.  White  II.  126,  629,  640 

T.  Wiggins  II.  606 

V.  Williams  II    169 

v.  Word  II.  612 

V.  Wright  II.  409,  417 

Whiteford  v.  Burckmyer     1.  484;  II.  437 

Whitehead  v.  Jones  II.  495 

V.  Walker  II.  604,  644 

Whitelocke  v.  Musgrove  II.  479 

Whiteman  v.  Childress  I.  46,  47  ;  II. 

4.5,  120 

Whitesides  v.  Wallace      II.  290,  291,  293 

Whitfield  V.  CoUingwood  II.  550,  577 

V.  Fauesset  II.  287 


Whitfield  r.  Le  Despencer  II.  315 

T.  Savage  I.  528,  555 

Whiting  V.  Daniel  II.  552 

Whitlock  V.  McKechnio  II.  440 

V.  Underwood       I.  381  ;  II.  67 
Whitman  v.  Farmers'  Bank     I.  499,  .504, 

513 

V.  Leonard  I.  148 

Whitmer  v.  Fryo  XL  549,  573,  580 

Whitmore  ».  Corey  11.476 

Whitney  ».  Abbot  L  586,  595  ;  IL  182,515 

V.  Bigelow  II.  652,  661 

V.  Bunnell  L  321 

V.  Dutch  L  71,  73,  74 

V.  Goddard  II.  323 

V.  AVhiting  IL  364 

Whiton  V.  Mears  II.  138 

Whittaker  v.  Edmunds  (1  Moody  &  R.) 

1186 

Whittemore  v.  Adams  II.  367 

Whittier  v.  Eager  I.  199 

V.  Grafi'am  I.  449 

Whittington  v.  Farmers'  Bank  II.  495, 499 

Whittle  V.  Skinner  I.  240 

Whittlesey  v.  Dean  L  509 

Whitton  V.  Swope  II.  392,  393 

Whitwell  V.  Bennett  II.  69 

r.  Brigham        1.411,414,420; 

XL  462 

V.  Johnson  I.  369 

V.  Crehore  II.  27,  29 

V.  Dimsdale  II.  583 

?;.  Johnson  I.  509,  510 

Wickes  V.  Caulk  IL  554,  578,  580 

Wick's  Case  IL  408 

V.  Gogerly  IL  420 

Widgery  v.  Munroe  X.  369,  449,  451,  452  ; 

IL  516 

Wiffen  V.  Roberts  L  373  ;  IL  44 

Wiggin  V.  Bush  IL  275,  279 

V.  Damrell  11    50,  51,  603 

V  Tudor  I.  247 

Wiggins  V.  Vaught  I.  45 

Wiggle  r.  Thomason     '  1.410 

Wight  ».  Shuck  IL414 

Wilamouicz  v.  Adams  I.  47 

Wilbour  r.  Turner  XL  485 

Wilbur  V.  Sclden  IL  496 

V.  Wilbur  IL  578 

Wilburn  v.  Grcer  T.  47 


cxx 


INDEX    TO    CASES    CITED. 


Wilby  V.  Warren 
Wilcox  V.  Beal 

V.  Howland 
V.  Hunt 


II.  85 

II.  592 

11.423,  424,425 

II.  318,  327 


V.  M'Nutt  I.  483,  487,  493 

T.  Mitchell  I.  499,  504 

r.  Roath  (12  Conn.)  1.74 

V.  Routh  (9  Smedes  &  M.)    I.  500 

Wild  V.  Bank  of  Passamaquoddy     I.  173, 

351 ;  11.  239,  240,  463 

V.  Fisher  II.  152 

V.  Rennards  I.  305,  428,  429 

Wilde  T.  Armsby  II.  577 

V.  Sheridan  II.  342 

Wilder  ».  Aid  rich  1.86,88 

«.  Seelye         I.  367  ;  II.  286,  288 

Wilders  v.  Stevens  II.  459 

Wildes  V.  Savage      I.  62,  294,  295,  297  ; 

II.  137,  139,  140 

Wiley  v.  Holmes  II.  374 

Wiliams  v.  Griffith  II.  649 

Wilkcrson  v.  The  State  II.  4 1 1 

Wilkes  V.  Harper  II.  246 

V.  Jacks  I.  554,  596,  603 

Wilkie  V.  Roosevelt  II.  418 

Wilkins  v.  Commercial  Bank  I.  499 

r.  Jadis  1.418,420,616,618,641 

T.  Reed  II.  152 

Wilkinson  jj.Byers  11.217 

».  Johnson      1.319,323,328; 

II.  29,  101,  189,  285,  574, 

590,  598,  600,  601 

V.  Kirby  II.  603 

V.  Lutwidge      I.  320 ;  II.  38, 

99,  196,  482,  590 

V.  State  II.  588 

v.  Sterne  II.  224,  228 

V.  Wright  11.  357 

WiTks  V.  Robinson  II.  643 

Willard  v.  Clarke  II.  556 

V.  Harvey  11.  633 

V.  Rccdcr  II.  417 

Willcox  V.  Smith  II.  646 

Wiliets  V.  I'lioeiiix  Bank  I.  33,  273  ; 

II.  50,  65,  74,75,  79,  592 

William  &  Emmelinc,  The  II.  173 

William  Money,  The  II.  171,  173 

Williams,  Ex  parte  II.  396,  397 

V.  Alexander  II.  663 

V.  Bank  of  U.  S.         I.  487,  490 


Williams  v.  Banks  II.  433,  471 

r,  Beazley  II.  507 

V.  Brashear  I.  537,  539,  541 
V  Brobst  I.  583,  587,  611 

V.  Council  II.  634 

T.  Cutting  I.  12 

T.  Drexel  II,  483.  589,  590,  591 
V.  Everett  I.  333 

V.  Field  II.  25 

T.  Flight  II.  605 

v.  Floyd  II.  477 

V.  Germaine  I.  314,  316,  318 
V.  Gilchrist  II.  617 

r.  Griffith  11.224,231,653 

V.  Hicks  I.  207 

r.  Houghtaling  II.  223,  425 

V.  James  II.  233,  454,  487 

V.  Jarrett  II.  550 

V.  Jones  II.  326,  382,  385,  631 
V.  Little  I.  221,  225 

V.  Matthews  I.  515 

».  Moor  (11  M.  &  W.)  1.67, 
68,  72 
V.  Moore  (5  N.  H.)  II.  164 

r.  Nicholson  I.  275 

V.  Preston  II.  381 

V.  Putnam  I.  642,  643 

v.  Rawlinson  II.  231 

V.Reynolds  11.407,414,426, 
427,  433 
V.  Roberts  II.  167,  168 

V.  Robinson  I.  596,  609 

T.  Seagrave  II.  589 

T.  Smith  I.  191,224,510; 

II.  314 
V.  Storm  II.  427 

V.  Storrs  II.  374 

V.  Thomas  I.  138;  II.  180 

V.  Wade  II.  343,  347,  348 

V.  Walbridge  I.  125,  128,  132; 
II.  4  (•)'.» 
V.  Waring  I.  307,  4'J8 

V.  Williams  II.  406 

V.  Winans  I.  28.'),  293 

Williamson  v.  Bennett  I.  43 

V.  Clements  II.  287 

».  Johnson  I.  135;  II  474 
r.  Thompson  II.  210 

r.  Watts  I.  68 

Willie  r.  Green  I.  •J43  ;  II.  94 


INDEX   TO    CASES    CITED. 


CXXl 


Willings  V.  Conscqua  I.  247;  II.  318 

Willins  V.  Smith  II.  661 

Willis  V.  Bank  of  England  II.  187 

V.  Barrett  I.  32  ;  II.  474 

V.  Cresey  II.  298,  310 

V.  Green  I.  502 ;  II.  4 

V.  Hobson  I.  257,  644 

V.  Newham  II.  653 

Willison  V.  Patteson  I.  152  ;  II.  8 

Willinarth  v.  Crawford  I.  165 

Wiilshcir  v.  Cox  II.  468 

vVillson  V.  Force  II.  163 

Wilniot  V.  Williams  I.  427  ;  II.  474 

Wilson's  Case  I.  113;  II.  583 

Wilson,  Ex  parte  I.  136,  233,  528 

V.  Alexander  II.  101,  189 

V.  Barthrop  I.  121  ;  11.460 

V.  Black  II.  520 

V.  Calvert  II.  647 

V.  Clark  II.  373,  438 

V.  Clements  I.  294 

T.  Codman  11.  608 

».  Edmonds  II.  612 

r.  Foot  I.  235 

V.  Goodin  11.  220,  488 

V.  Green  I.  235 

V.  Hardesty  11.  416 

V.  Henderson  U.  565,  567,  577 

V.  Hickson  II.  96 

V.  Huston  I.  596 

V.  Ivy  II.  639 

V.  Jamieson  II.  565 

r.  Jordan  I.  210 

T.  Keedy  II.  607. 

V.  Kilburn  II.  409 

V.  Lewis  I.  1 29 

V.  Lazier  I.  188;  II.  26 

r.  Mullen  IL  120 

v.  Reaves  II.  603 

V.  Swabey  I.  503,  504 

V.  Tumman  I.  101 

V.  Wheeler  I.  235,  241 

V.  Williman  1.411  ;  II.  461 

V.  Williams  I.  126 

V.  Wright  IL  233 

Wilthaus  V.  Ludecus  I.  85 

Winans  v.  Davis  I.  494 

Winchell  v.  Bowman  11.  654,  656,  658 

V.  Hicks  n.  648,  655,  657 

Windham  v.  Wither  II.  457,  458 

k 


Windham  Bank  ».  Norton         I.  373,  443, 

460,  461,  463 

Windlc  V.  Andrews  I.  643 

Wingatc  v.  Mechanics'  Bank  I.  480 

Winn  V.  Dunn  IL  420 

V.  Young  n.  392 

Winship  v.  Bank  of  U.  S.  I.  125.  133 

Winston  v.  McCormick  II.  631,  633 

r.  Wc'stfeldt  L  260 

Winter  v.  Anson  11.  167 

V.  Drury    L  290,  335,  336  ;  IL  60 

Winterbottom's  Case  I.  159  ;  II.  6 

Wintcrcast  v.  Smith  II.  447 

Wintcrmute  v.  Post  I.  303,  325 

Winthrop  v.  Carleton  IL  319,  376 

V.  Pepoon  I.  350  ;  II.  336, 

376,  463 

Wintle  V.  Crowther  I.  129 

Winton  v.  Saidler  II.  469 

Wires  v.  Farr  II.  633 

Wise  V.  Charlton  IL  147,  542 

7).  Prowse  II.  459 

Wiseman  v.  Lyman  IL  200 

Wishart  v.  Downey  11.  615 

Wissen  v.  Roberts  I.  191 

Withall  V.  Masterman  II.  242,  249 

Withington  v.  Herring  I.  120 

Withrow  V.  Wiley  II.  531 

Witte  V.  Derby  Fishing  Co.  I.  169 

Witter  V.  Latham  IL  305 

Wittersheim  v.  Carlisle  IL  642 

Wolcott  V.  Van  Santvoord        I.  229,  309 

Wolf  ».  Summers  II.  165 

Wolfe  V.  Brown  IL  142 

V.  Jewett  I.  94,  339,  350,  450 

V.  Whiteman  IL  643,  644 

Wolfcrsberger  v.  Bucher  I.  611 

Wolff  r.  Oxholm  IL  358,  365 

Wollenwcber  v.  Kctterlinus      I.  537,  538. 

544,  546 
Womble  v.  Battle  II.  167 

Wood  V.  Bodwell  II.  151,  218 

V.  Braddick  II.  481,  657,  658 

V.  Brown  I.  614 

V.  Corl  L  396,  493  ;  II.  372 

T.  Drury  IL  480 

V.  Farm.  &  Mech.  Bank  I.  656 

V.  Gibbs  I.  537 

V.  Goodridge  I.  80,  91,  92 

j;.  Grimwood  IL  410,  418 


cxxn 


INDEX   TO   CASES    CITED. 


Wood  T.  Jefferson  Co.  Bank  11.  239,  243, 

244,  247 

V.  Malin  II.  327 

V.  Mytton  I.  18,  19,  20 

D.Mullen  1.311,409 

V.  Perry  II  46 

».  Pagh  1.317,320 

r.  Tyson  II.  442 

V.  Watkinson  II.  326,  327 

V.  Wood  I.  502  ;  II.  5 

V.  Wylds  II.  653,  662 

Woodard  v.  Fitzpatrick  II.  406 

Woodbridge  v.  Brigliam    I.  311,  374,  384, 

432,  435,  509  ;  II.  286 

r.  Spooner        I.  179;  II.  504 

Woodcocks.  Bonnet  II.  154 

V.  Houldsworth         I.  478,  485  ; 

II.  491,  492 

Wooddy  V.  State  Bank  II.  657 

Woodfolk  V.  Leslie  I.  23,  24 

Woodford  v.  Dorwin  I.  50 

V.  Whiteley  II.  295,  296 

WoodhuU  V.  Holmes  II.  28 

V.  Wagner  II.  326,  370 

Woodin  V.  Foster  I.  436,  474,  477 

Woodland  v.  Fear  II.  78 

Woodman  r.  Eastman       I.  571,  575,  595, 

601  ;  II.  239,  244 

V.  Thurston  I.  464,  576 

Woodroffe  v.  Hayne  II.  225 

Woodruff  V.  Merchants'  Bank  I.  399, 

407  ;  II.  57,  68,  69,  70 

V.  Moore  II.  639 

V.  State  II.  609 

V.  Trapnall  II   621 

Woods  V.  Bailey  II.  168 

B.  Scliroeder  II.  59,  84 

Woodstock  Bank  r.  Downer  II.  145 

Wf)odthori)e  v.  Lawcs        1.  468,  469,  473, 

505 

Woodward,  Ex  parte  II.  656 

(•.Clarke  II.  6.')3 

V.  Drcnnan  I.  375 

V.  IIarl)in  II.  25,  484 

».  Winship  I.  132.  133 

Woodworth  v.  Bank  of  America      I.  276, 

432  ;  II.  562,  565 

Wookcy  V.  Pole     II.  33,  43,  111,113,  268, 

269 
Wooldridgc  v.  Planters'  Hank  II.  645 


Wooley  V.  Clements 
Wool  ley  V.  Clark 

V.  Sergeant 
Woolsey  v.  Crawford 
Woolway  v.  Howe 


I.  402 

I.  161 

I.  24 

I.  650 

II.  471 


Worcester  Co.  Bank  v.  Dorchester,  &c. 

Bank  I.  115,  189,  232,  259  ;  II. 

278,  280,  281,  282 

Worcester  Bank  v.  Wells         II.  340,  342 

Co.  Inst,  for  Savings  v.  Davis 

II.  119,  138 

Worden  v.  Dodge  I.  45 

Work  V.  Kase  II.  470.  494 

Worley  v.  Harrison  I.  44 

Worrall  v.  Jones  II.  465 

Worsham  v.  Goar  11.  243,  245 

Worthington  v.  Curd  II.  437 

V.  Grimsditch  II.  653, 

654 

Wragg  c.  Comptroller-General         II.  167 

Wray  v.  Furniss  11.  618 

Wren  v.  Pearce  II.  128 

Wright  V.  Allen  II.  249 

V.  Boyd  I.  170;  II.  442 

V.  Butler  II.  487 

r.  Conover  II.  629 

I'.  Douglass  II.  95 

V.  First  Crockery  Ware  Co. 

II.  150,  157 
V.  Hencock  II.  305,  307 

V.  Jacobs  II.  294,  305 

c.  Laing  11.231,417,421 

V.  Latham  II.  24,  522 

r.  McAlexander  II.  400 

V.  McFall  I.  5:) 

V.  Maidstone  IL  295,  296 

V.  Morse  II.  122 

r.  Uvci\  IL  91,  92,  188,  189 

V  Rogers  II.  60S 
r.  Shawcross  1.510,51.') 
T.  Simp.son      L  238  ;  II.  137,  LM7 

V  Steele  L  72,  74 
V.  Stockton  I.  237 
V.  Wheeler            IL  379,  406,  4  20 

V  Wright  I.  179;  IL  45,  .55,  59 
Wrightson  v.  I'lillan  I.  140 
Wyat  v.  Campbell  L  279  ;  11.419 
Wyatt  ».  Buhner                                  L  189 

V.  Marquis  of  Hertford  II.  86, 

155,  179 


INDEX    TO    CASES    CITED. 


CXXlll 


Wvch  V.  East  India  Co.  II.  G33 

Wyer  v.  Dorchester  &  Milton  Bank 

II.  275,  280,  281,  282 


Wyke  T.  Rogers 
Wyldman,  Ex  parte 
Wylie  V.  Lewis 
Wyman  v.  Adams 
V.  Gray 


I.  269 
1.97 


I.  241 
II.  458 
II.  520 
II.  490 
II.  128 


V.  Hallowell  &  Augusta  Bank 

II.  594 

Wynn  v.  Alden  I.  470,  473,  474,  477 

Wynne  v.  Alston  II.  1 67 

».  Callander      I.  217  ;  11.319,  418 

r.  Jackson     11.  318,  319,  321,  330, 

331 

V.  Raikes  I.  282,  289,  293 


Y. 


Yale  V.  Dederer  I.  79 

V.  Eames  I.  147 

Yallop  V.  Ebers    I.  229,  326  ;  II.  249,  250 

Yarborough  ».  Bank  of  England      I.  18; 

II.  584 


Yarnell  v.  Anderson 
Yates's  Case 
Yates,  Ex  parte 
V.  Bell 


I.  135  ;  II.  153 

II.  58 

II.  125 

I.  334 


V.  Donaldson  I.  229,  235,  247,  326  ; 

II.  160,201 

V.  Freckleton  II.  209,  210 

V.  Sherrington  I.  86 

Yeates  v.  Groves  I.  336 

Yeatman  v.  Cullen  II.  336,  347 

Yeaton  v.  Bank  of  Alexandria  II.  27 


Yongue  v.  Huff    I.  537,  539,  540,  542, 
York  V.  Blott  II.  465, 

Yorks  V.  Peck  I. 

Young  V.  Adams        I.  46  ;  II.  37,  38, 
101,  103,  107,  186,  188,  189,  194, 


V.  Berkley 
V,  Bryan 
V.  Cole 
V.  Davis 
V.  Dobyns 
V.  Fuller 
V.  Glover 
V.  Grote 
V.  Harris 
V.  Mackall 
V.  Miller 
V.  Patterson 
V.  Scott 
V.  Triplett 
V.  Ward 
V.  Weston 
V.  Wood 
Youngs  V.  Bell 


II. 

I.  643;  II.  25, 

II.  39, 

II. 

II. 

II. 

II 

II.  80,  285, 

11.  320, 

II. 

II. 

II. 

II. 

I. 
II.  446, 
II.  637, 

II. 

II. 


r.  Lee  L  191,  221,  222,471, 


.544 

488 
247 
98, 
600 
419 
499 
187 
6J1 
647 
527 
18 
597 
377 
6.39 
428 
484 
416 
210 
447 
643 
168 
485 
473 


z. 

Zabriskie  v.  Cleveland 
Zacli  arias  v.  Zacharias 
Zane  v.  Zane 
Zebley  v.  Voisin 
Zeigler  v.  Gray 
Zephyr,  Schooner 
Zerrauo  v.  Wilson 
Zwinger  v.  Samuda 


II.  34 

II.  629,  649,  654 

I.  199 

II.  456 

II.  47(1 

IL   174 

n.   151 

n.  34,   lit 


THE    LAW 


NOTES     AND     BILLS. 


CHAPTER    I. 

OF   THE   ORIGIN  AND   FUNCTION   OF  NOTES   AND   BILLS. 

The  origin  of  negotiable  bills  of  exchange  is  not  certainly 
known.  It  lias  been  much  disputed  in  what  ages  and  among 
what  nations  they  arose.  But  the  opinion,  or  rather  the  con- 
jecture, of  some  writers,  that  they,  or  instruments  very  like 
them,  were  known  among  the  Romans  and  Grecians,  has  been 
shown  to  be  without  foundation.  It  is,  however,  certain,  that 
such  a  transaction  as  a  request  by  A  in  Rome  that  B  in  Alex- 
andria should  pay  to  C,  on  A's  account,  the  money  which  B 
owes  A,  must  have  been  not  uncommon  ;  for  if  there  was  com- 
merce, there  was  foreign  indebtedness,  and  it  must  sometimes 
have  happened  that  in  this  way  a  foreign  debt  could  be  paid 
with  equal  convenience  to  debtor  and  creditor.  Indeed,  both 
Cicero  (a)  and  Isocratcs  {b)  refer  to  such  cases.  Moreover,  many 
of  the  principles  of  the  civil  law  in  relation  to  novation,  delega- 
tion, and  subrogation  are  quite  analogous  to  those  which  now 
constitute  the  law  of  negotiable  paper  ;  and  for  this  reason  it 
may  seem  more  strange  that  nations  possessing  so  much  com- 
merce and  civilization  as  Greece  and  Rome,  did  not  go  so  far 


(a)  Epist.  ad  Att.,  xii.  24,  xv.  25. 
(6)  TpoTreftriKOf.     Isoc,  p.  170  (17). 
Vol.  L— a 


2  NOTES  AND   BILLS.  [CH.  I 

as  to  iu\ent  and  use  negotiable  paper.  But  they  did  not.  Bills 
of  exchange,  which  at  first  were  not,  so  far  as  our  evidence 
extends,  negotiable,  were  in  use  in  Venice  in  1272,  for  a  law 
of  that  date  refers  io  them.  There  are  traces  of  them  a  little 
earlier;  and  the  different  theories  which  ascribe  their  origin  — 
always  on  some,  but  never  on  certain  evidence  —  to  the  Jews 
when  oppressively  expelled  from  their  homes,  to  tlie  Lombards 
tvhen  driven  from  one  country  to  another  for  usury,  or  to  the 
Guelphic  Florentines  when  exiled  from  Italy  by  the  Ghibcllines, 
all  concur  in  proving  that  they  were  in  use  among  the  com- 
mercial nations  of  Europe,  and  especially  along  the  shores  of 
the  Mediterranean,  about  five  centuries  ago,  and  tliat  they  were 
then  of  recent  introduction. (c) 


(c)  Mr.  Reddie,  in  his  Historical  View  of  the  Law  of  Maritime  Commerce,  examines 
this  question  with  his  accustomed  thoroughness  and  ability,  and  concludes  that  bills 
of  exchange  were  first  used  by  the  Campsores  or  money-lenders  at  tiie  fairs  of  the 
twelfth,  thirteenth,  and  fourteenth  centuries.  He  remarks  as  follows:  "Along  with 
the  dealers  in  other  merchandise,  the  money-dealer  repaired  with  his  commodity  to  the 
stated  fairs  established  over  Europe;  and,  as  his  commodity  was  in  constant  and  uni- 
versal demand,  he  became  a  person  of  consequence  at  the  fair.  As  his  money-table 
was  necessary  for  the  accommodation  of  all  the  other  dealers,  he  had  a  peculiar  claim 
to  the  protection  of  the  government  under  whose  authority  the  fair  was  held.  Lilce  the 
other  merchants  who  disposed  of  their  goods,  he  was  equally  if  not  more  entitled  to  ob- 
tain a  document  of  the  debt  contracted  to  liim,  under  the  seal  of  the  fair,  and  clothed 
with  all  the  privileges  enjoyed  by  tlie  creditor  under  its  ])eculiar  jurisdiction.  For  the 
money  so  advanced  by  him,  it  generally  suited  the  merchant  whom  he  accommodated 
to  give  or  transfer  to  the  money-dealer  some  of  these  documents  of  debt  which  he  had 
received  from  other  merchants  for  the  goods  he  had  brought  to  and  sold  at  the  fair. 
To  the  money-dealer  this  was  also  desirable,  as  affording  a  double  security  for  the 
money  he  advanced  and  the  credit  he  gave ;  and  the  document  of  debt  thus  trans- 
ferred, for  a  certain  sum  advanced  in  cash  by  a  money-dealer  at  a  fair,  specifying  a 
particular  pry-day  at  a  subsequent  fair,  to  be  icept  either  in  the  same  or  in  a  distant 
town,  and  uader  the  peculiar  jurisdiction  of  the  fair,  containing  a  warrant  ibr  arresting 
the  person  of  the  debtor  who  should  fail  in  making  payment,  combines  all  tlie  essen- 
tials, and  obviously  presents  the  model,  of  our  modern  bill  of  exchange.  The  precise 
era  of  that  most  useful  invention  does  not  ajipear  to  have  been  exactly  ascertained  ;  but 
that  it  originated,  in  the  manner  we  have  just  seen,  in  the  usages  and  customs  observed 
and  in  the  regulations  adopted  at  fairs,  from  considerations  of  general  security  and 
convenience,  there  is  every  reason  to  believe.  And  after  it  was  once  established  upon 
a  small  scale,  the  utility  and  convenience  of  the  invention  behooved  gradually  to  lead 
to  its  more  extensive  adoption,  particularly  in  foreign  and  maritime  commerce.  In- 
deed, it  seems  probable  that  bills  of  exchange,  such,  or  nearly  such,  as  we  have  at 
present,  first  came  into  general  use  in  the  cotnse  of  the  cxteniled  commerce  carried  on 
by  the  maritime  cities  of  Italy,  and  of  the  south  of  France  and  Spain,  under  their  com- 
paratively free  and  well-administered  governments.  Weber,  in  his  IJicerche  suU'  Originco- 
eulla  Natura  del  Contralto  di  Cambio,  published  at  Venice  in  1810  states  positively  that 


CU.  l]  ORIGIN  AND   FUNCTION   OF   NOTES   AND   BILLS.  3 

These  facts  have  an  interest  far  beyond  that  which  may  be 
felt  only  by  tlie  historian  or  antiquary.  For  if  they  help  us  lo 
understand  the  reason  why  this  most  useful  invention  was  made 
at  that  period,  and  was  not  made  before,  they  may  also  assist 


sudi  dofuinents  were  in  use  at  Venice  in  1171  ;  and  a  law  of  Venice  of  1272  clearly 
desin:nates  bills  of  exchange.  The  unpublished  'statute  of  Avignon,  of  124.'5,  contains 
a  paragraph  entitled  De  Litteris  Caml)ii  ;  a  statute  of  Marseilles,  dated  125.3,  presents 
evident  traces  of  them  ;  and  a  transaction  of  this  description  is  attested  by  a  document 
of  1256,  relative  to  England.  Further,  in  his  CoUeccion  Diplomatica,  Don  Antonio 
Captnany  has  discovered  and  recorded,  in  tiic  middle  of  a  public  authentic  instrument, 
the  following  copy  of  a  bill  of  exchange,  dated  28th  April,  1404,  drawn  by  a  merchant 
in  Bruges  upon  a  mercantile  company  in  Barcelona,  which  approaciies  pretty  much  to 
the  present  form,  and  shows  that  such  negotiable  documents  were  then  in  frequent 
use:  '  Al  nome  di  Dio,  Amen.  A  di  Aprile  xxviii,  1404.  Pagate  per  questa  prima 
di  camb.  a  usanza,  a  Pietro  Gilberto  c  Pietro  Olivo,  scuti  mille,  a  sold.  x.  Barcelonesi 
per  scuto :  e  quali  scuti  mille  sono  per  cambio  che  con  Giovanni  Colombo,  a  Gressi 
xxii.  de  gresso  per  scuto,  ct  Pon.  a  nostro  conto  ;  et  Christo  vi  guardi.  (Subtus  vero 
erat  scrijjtum.)  Antonio  quart.  Sab.  di  Brugis.'  It  seems  idle,  tlierefore,  to  look  for 
the  origin  of  these  negotiable  documents  in  any  particular  event,  occurring  in  any 
particular  country  ;  as  Montesquieu  seems  to  have  done  in  the  expulsion  of  the  Jews 
from  France,  in  1181,  by  Philip  Augustus,  according  to  the  story  first  told,  it  is 
believed,  by  Cleirac,  in  his  Us  et  Coutumes  de  la  Mer.  It  is,  no  doubt,  true,  as 
observed  by  M.  Nouguier,  the  latest  French  writer  on  the  subject  (18.39),  that  there  is 
a  distinction  between  the  cause  or  occasion,  and  the  fact  or  event,  of  the  invention  of 
bills  of  exciiange ;  that  if  we  inquire  what  cause  has  led  to  the  invention,  the  true 
answer  is,  the  necessities  of  commerce ;  but  that  if  we  inquire  who  were  the  inventors, 
in  what  position,  and  by  whom,  these  necessities  were  most  strongly  felt,  and  what 
person  or  persons,  experiencing  the  urgency  of  these  necessities  in  the  most  lively 
manner,  produced  the  thing  invented,  it  would  be  absurd  to  call  the  extension  of 
commerce  the  inventor;  for  this  would  be  to  confound  the  mover  (moteur)  with  the 
agent.  It  is  also  highly  probable  tliat  the  Jews,  being  in  these  ages,  as  we  have  seen, 
the  chief  campsores  or  money-lenders,  persecuted  from  mistaken  religious  views,  and 
on  account  of  their  alleged  pecuniary  extortions,  scattered  over  the  European  king- 
doms, yet  in  a  manner  forced  to  keep  up  a  pretty  constant  communication  with  each 
other,  clever  and  acute  naturally,  and  comparatively  skilful  in  such  business,  from 
having  been  trained  to  it  for  generations,  were  really  the  first  inventors  of  bills  of 
exchange  in  a  rude  state.  But  that  they  made  the  discovery  or  invention  at  the  precise 
time,  and  solely  in  consequence,  of  their  expulsion  from  the  kingdom  of  France  by 
Philip  Augustus,  is  not  very  likely  in  the  circumstances,  does  not  appear  to  be  proved 
by  any  contemporary,  or  nearly  contemporary,  authority  or  document,  or  by  any  other 
authority  than  the  statement  of  Cleirac,  in  1661,  made  nearly  five  hundred  years  after 
the  alleged  event,  and  which  seems  to  have  been  repeated  by  subsequent  French  writers 
without  much  further  investigation." 

Hume  (Hist.  Eng.,  ch.  12)  states,  that  in  the  year  1255  the  Bishop  of  Hereford,  being 
at  Rome  as  deputy  from  the  English  Church,  in  order  to  replenish  the  Pope's  exhausted 
treasury  and  pay  the  debt  of  Henry  III.,  drew  bills  of  different  values,  but  amounting 
in  all  to  150,540  marks,  on  all  tlio  bishops  and  abbots  of  the  kingdom;  and  granted 
these  bills  to  Italian  merchants.  His  authority  is  the  Historia  Major  of  Matthew  Paris, 
pp.  612,  628  (edit.  1640,  pp.  910,  911,  914),  and  the  Chron.  Thomse  Wykcs  (Vol- 


4  NOTES    A^'D   BILLS.  [CH.  L 

US  in  comprehending  the  exact  purpose  whicli  they  were  in- 
tended to  accomphsh,  and  the  function  they  do  in  fact  per- 
form, and  thus  they  will  aid  us  in  discovering  the  true  prin- 
ciples of  the  law  in  relation  to  them  ;  for  these  must  necessarily 
be  such  as  will  promote  that  purpose  and  function. 

The  views  which  we  entertain  on  this  subject,  and  have  briefly 
intimated  elsewhere,  are  these.  We  consider  that  some  exchange 
of  commodities  must  have  existed  among  men  as  soon  as  society 
existed ;  for  one  of  the  objects  for  which  society  was  formed,  and 
one  of  the  influences  which  held  it  together,  must  have  been  the 
facility  which  it  afibrded  its  members  to  make  their  superfluities 


ume  2  in  Gale's  Historiaj  Anglican^  Scriptores  Quinque,  Vol.  2).  Wykcs  puts  this 
transaction  in  the  year  1260.  But  neither  Wykes  nor  Paris  warrants  us  in  considering 
these  hills  as  anything  more  than  letters  directing  the  payment  of  money  "  tali  et  tali 
mercatori  Senensi  aut  Florentino,"  That  given  by  Paris  differs  entirely,  in  form,  from 
the  old  bills  referred  to  by  Capmany  and  Arnolde,  and  from  bills  now  in  use ;  but  in 
nature  and  quality  is  perhaps  the  same,  but  not  negotiable.  Macpherson  (Annals  of 
Commerce,  Vol.  1,  p.  405),  referring  to  the  same  occurrence,  says  :  "  Though  the 
excellent  accommodation  of  remitting  money  by  bills  of  exchange  was  probably  known 
long  before  this  time  in  Italy  and  all  other  countries  in  which  there  was  any  commerce, 
there  is  not,  I  believe,  any  express  mention  of  them  (so  little  attention  did  historians 
pay  to  matters  of  real  utility  and  importance)  till  a  very  extraordinary  and  infamous 
occasion  connected  them  with  the  political  events  of  the  age." 

In  Anderson  on  Commerce,  Vol.  1,  p.  171,  bills  of  exchange  are  said  to  be  referred 
to  by  a  charter  of  Hamburg  in  1189,  and  to  have  been  at  that  time  "  very  new  in 
Europe."  In  1307  Edward  I.  prohibited  the  payment  of  tithes  to  the  Pope  in  coin  or 
bullion,  but  directed  that  the  sums  raised  should  be  delivered  to  merchants  in  England, 
to  be  remitted  to  the  Pope  "pe»"  viam  cambii."  And  by  act  of  Parliament,  in  1381, 
reciting  the  great  mischief  which  the  realm  suffered  because  gold  and  silver,  money, 
plate,  jewels,  &c.  were  carried  out  "  so  that,  in  eftect,  tiicre  is  none  thereof  left,"  it  is 
enacted  that  no  moneys,  plate,  &c.  should  be  sent  beyond  sea,  and  no  ])ayments,  other 
than  salaries  to  the  king's  officers,  made,  except  by  bills  of  exchange,  upon  the  oath 
of  the  merchant  exchanging,  and  at  the  special  license  of  the  king.  Upon  which  the 
author  observes  :  "This  act  too  plainly  shows  how  little  the  trade  and  nature  of  ex- 
rliange  by  bills  was  then  understood  in  England ;  though  long  before  this  time  in 
familiar  use  in  the  free  cities  of  Italy,  in  the  Netherlands,  Hamburg,  &c.  So  incon- 
siderable then  were  our  foreign  commercial  dealings."     LI.,  pp.  274,  373,  374. 

Macpherson,  in  his  Annals  of  Commerce,  Vol.  1,  p.  367,  states  as  follows  :  "1202, 
January  6th.  King  John,  having  occasion  to  send  two  agents  to  Home,  wiiere  no 
business  could  be  forwarded  without  money,  furnished  them  with  a  letter  addressed  to 
all  merchants,  whereby  he  bound  himself  to  repay  the  sums  advanced  to  his  agents,  «Scc  , 
at  such  time  as  should  bo  agreed  upon,  to  any  person  presenting  his  letter,  together 
with  the  acknowledgment  of  his  agents  for  the  sum  received  by  tiiem."  He  is  said  to 
have  re|Kafedly  practised  tiio  same  method,  and  an  earlier  instance  is  referred  to. 
His  authority  is  Prynne's  Hist,  of  King  Jolin,  pp.  .5,  11. 

The  following  legend,  says  Mr.  Johnson  (Law  of  Bills  of  Ex.,  LonuoD,  1839^   has 


CH.  I.]  ORIGIN   AND    FUNCTION   OF    NOTES   AND    BILLS.  5 

supply  their  wants.  How  long  this  state  of  things  continued,  or 
how  long  this  interchange  was  effected  by  means  of  barter  alone 
we  do  not  know,  because,  at  the  beginning  of  recorded  history, 
we  find  money  in  use  among  men.  Tiiis  was  a  great  step  in  ad- 
vance. Something  was  found  to  represent  all  other  things  in  this 
business  of  interchange.  The  articles  originally  used  for  this 
purpose  were  two  metals,  so  generally  found,  and  in  such  quan- 
tities, as  to  be  sufficient  for  the  purpose,  and  yet  not  found  with- 
out an  expenditure  of  time  and  lal)or  wliich  would  prevent  them 
from  becoming  too  common,  and  would  thus  impart  to  them  a 
sufficient  value.     And  the  experience  of  all  subsequent  ages  has 


with  all  f^ravity,  been  adduced  to  prove  that  liills  of  exchange  were  used  in  the  fourth 
century:  "  The  philosopher  Synesius,  afterwards  Bishop  of  Ptolemais,  about  410,  hav- 
ing converted  a  pagan  philosopher,  Evagrius  of  Cyrene,  to  Christianity,  the  convert 
soon  afterwards  i)rought  to  Synesius  three  hundred  pieces  of  gold  for  the  poor,  re- 
questing a  hill,  under  his  hand,  that  Christ  should  repay  it  him  in  another  world,  with 
which  Synesius  complied  ;  and  not  long  after,  Evagrius  being  about  to  die,  he  directed 
this  bill  to  be  deposited  in  his  coffin.  Soon  after  his  death,  he  appeared  in  a  vision  to 
his  friend  the  Bishop,  and  told  him  to  come  to  his  grave  and  take  his  bill,  which  upon 
Synesius  doing,  he  found  his  bill  in  the  hand  of  the  corpse,  with  this  receipt  written 
u])on  it :  'I,  Evagrius  the  philosopher,  salute  thee,  most  holy  Bishop  Synesius.  I 
have  received  the  debt  which  in  this  paper  is  written  with  thy  own  handwriting.  I  am 
satisfied,  and  have  no  lawful  claim  for  the  gold  which  I  gave  to  thee,  and  by  thee  to 
Christ,  our  God  and  Saviour.'  Good  Richard  Baxter,  when  commenting  upon  this 
marvellous  story,  which  he  evidently  believed,  very  gr.ively  remarks  :  '  If  any  be 
causelessly  incredulous,  there  arc  surer  arguments  which  we  have  ready  at  hand  to 
convince  him  by.' " 

The  following  form  of  bills  in  use  about  the  year  1500  in  England  is  taken  by  Mr. 
Johnson  from  the  Chronicle  of  Richard  Arnolde  :  "Be  it  knowen  to  all  M''.  y'  I,  R.  A. 
Citezen  and  Habd'.  of  London,  have  rcss'.  by  Exchange  of  N.  A.  Mercer  of  the  same 
Cite  XX.  li.  St.]  whiche  twenty  Ponde  St.  to  be  payed  to  the  sayd  N.  or  to  the  Bringei 
of  this  Byll,  in  Synxten  Marte  next  comyng,  for  VI.  's  viij.  d'  st]  IX.  s.  iiij.  g.  fll.] 
Money  Currant  in  the  sayd  Marte  ;  and  j-f  ony  defimt  of  paycment  be  at  the  Day  in 
allc  or  ony  part  y'rof,  that  I  promyse  to  make  good  all  Costes  and  scathes  that  may 
growe  therby  for  defaute  of  pavement,  and  hereto  I  bynde  me  myn  Executours  and  all 
my  Goodis  wheresoever  they  may  be  founde,  in  Wytnesse  whereof  I  have  written  and 
Bealyed  this  Byll,  the  X  Day  of  Marche  A"  Dni.  MCCCC.  &c."  Mention  is  made 
of  "  letteres  dVschange,"  in  stat.  3  Rich.  II.  c.  3  (1379).  The  first  reported  case  is 
Martin  v.  Boure  (1  Jac.  1),  Cro.  Jac.  6. 

See  further  upon  this  point,  3  Kent  Com.  71,  72  ;  Story  on  Bills,  §§  5  -  11  ;  Chitty 
on  Bills,  pp.  10,  11;  Glen  on  Bills,  pp.  1-9;  Pothier,  La  Traite  du  Contrat  de 
Change,  Partie  I,  chap.  1  ;  Montesquieu,  Spirit  of  Laws,  B.  xxi.  chap.  20  ;  Molloy, 
De  Jure  Marit.  et  Nav.,  B.  2,  chap.  10  ;  Anderson  on  Commerce,  Vol.  1,  pp.  204,  385, 
411,  422  ;  Macphcrson's  Annals,  Vol.  1,  pp.  399,  474,  571,  592,  602,  615  ;  Ilallam's 
Intr.  to  Lit.  of  Europe,  VoL  1,  p.  68,  note;  Smith's  Wealth  of  Nations,  Vol.  1, 
>.  38. 

1* 


6  NOTES   AND   BILLS.  [CH.I 

provad  that  the  selection  was  either  very  fortunate  or  very  wise, 
for  gold  and  silver  have  remained  to  this  day  the  most  universal 
and  tlie  most  adequate  representatives  of  all  property.  From 
the  earliest  intimations  it  may  be  inferred  that  these  metals  were 
first  used  as  a  medium  of  exchange,  by  weight ;  but  another  step 
was  taken  at  a  period  so  remote  that  we  have  no  certain  knowl- 
edge of  it,  and  then  they  were  coined  into  money. 

This  instrument  of  commerce  answered  all  the  purposes  for 
which  it  was  wanted  for  many  ages.  It  satisfied  all  the  require- 
ments of  social  life,  and  of  commerce,  through  the  early  Eastern 
empires,  and  those  of  Greece  and  Rome.  It  is  said,  but  upon 
somewhat  doubtful  authority,  that  some  kind  of  paper-money 
was  used  in  Tartary,  or  China,  or  Japan,  a  thousand  years  ago  ; 
but  nothing  is  known  certainly  about  this.((;/)  In  Europe,  gold 
and  silver  money  were  the  only  circulating  medium,  and  were 
sufficient ;  but  five  or  six  hundred  years  ago  the  discovery  was 
made  of  a  new  circulating  medium,  of  which  it  is  the  charac- 
teristic quality,  that  it  represents  that  which  represents  every- 
thing else. 

The  use  of  money  enlarged  human  intercourse,  or  so  much  of 
it  as  may  be  included  in  the  widest  sense  of  the  word  commerce. 
It  made  interchanges  possible  and  easy,  which  would  otherwise 
have  been  very  difficult,  if  not  impossible.  We  cannot  imagine, 
for  example,  the  whole  commerce  of  Greece  and  Rome,  or  a  hun- 
dredth part  of  it,  carried  on  by  actual  barter  of  commodities. 
Precisely  in  the  same  way,  the  invention  and  use  of  paper  to  rep- 
resent money  gave  a  new  enlargement  to  commercial  intercourse, 
and  greatly  increased  its  facilities  and  its  possibilities.  For  we 
could  not  now  suppose  the  commercial  intercourse  between  Amer- 
ica and  Euroi)e,  'or  example,  to  be  carried  on  wholly  by  actual 
exchange  of  the  precious  metals,  —  as  must  be  the  case  if  bills 
and  notes  were  abandoned,  —  without  a  cost  and  hindrance  which 
would  be  fatal  to  a  very  large  part  of  it. 

Tii<3  invention  and  use  of  money  conferred  upon  mankind  the 
vast  benefits  which  have  ever  flowed  therefrom,  because  money 
represented  all  other  connnodilies,  and  for  no  other  reason  what- 
ever, lie  who  had  any  supei'liuities  on  hand  was  no  longer 
obliged  to  take  the  trouble  of  storing  tlieni  and  the  risk  of  their 

(<i)  4  Mod.  Univcrs.  Hist.  499. 


en.  I.]  ORIGIN   AND   FUNCTION    OF   NOTES   AND    BILLS.  7 

dos^truction,  or  to  save  them  by  exchanging  thcni  for  tlie  suj)er- 
fluitics  of  sonic  accessible  neighbor,  whether  these  were  precisely 
what  he  wanted  or  not.  For  now  he  might  sell  his  sui)erfluities, 
and  tiicir  vahie  was  then  invested  in  something  easily  preserved, 
and  which  coidd  always  be  exchanged  for  tlie  very  article  he 
wanted,  as  soon  as  he  found  it  within  his  reach.  JJut  after  a 
time,  this  exchange  was  to  be  made  in  such  quantities,  and  at 
such  distances,  that  it  cost  too  much  in  time  and  trouble  to  l)c 
profitable  ;  and  here  is  a  natural  limit  to  commerce  l)y  mere 
money,  which  seems  to  have  been  reached  by  the  nations  of  Eu- 
rope some  few  centuries  ago.  Beyond  this,  therefore,  it  is  plain 
that  commerce  could  not  have  grown,  unless  new  facilities,  by 
means  of  new  instruments,  had  been  provided  for  it ;  and  this 
was  done  by  the  invention  and  use  of  bills  of  exchange.  Just 
as,  by  the  help  of  money,  a  hundred  oxen  could  be  exchanged 
for  a  hundred  pieces  of  cloth,  at  distances  which  would  have 
made  the  actual  transfer  of  the  oxen  and  the  cloth  too  onerous 
to  be  advantageous,  so  now,  commercial  transactions  which  would 
have  required  large  bags  or  boxes  of  money  to  be  sent  back  and 
forth  at  great  cost,  both  of  time  and  money,  and  with  mucli 
trouble  and  some  hazard,  can  be  carried  into  full  effect,  with 
equal  promptitude,  safety,  and  facility,  by  exchanging  small  pieces 
of  paper.  And  these  two  inventions,  one  made  at  the  beginning 
of  human  society,  and  the  other  but  a  few  centuries  since,  are 
useful  for  precisely  the  same  reason  ;  money  represents  all  com- 
modities, and  so  prevents  the  necessity  of  an  actual  exchange  of 
commodities  ;  and  bills  and  notes  represent  money,  and  so  pre- 
vent the  necessity  of  an  actual  transfer  of  money. 

Moreover,  as  gold  and  silver  were  first  used  by  weight,  and 
it  was  a  distinct  though  very  speedy  improvement  to  coin  them 
into  money,  so  bills  of  exchange  were  first  used  only  for  the 
benefit  of  a  specified  payee,  but  were  soon  perfected  into  the 
indispensable  instrument  of  commerce  which  they  now  are  by 
being  made  negotiable.  For  this  adds  an  entirely  new  element 
to  th  AY  utility.  By  means  of  indorsements,  which  may  be  ex- 
tended indefinitely,  negotiable  paj)er  not  merely  makes  money 
m  one  place  or  at  one  tnne  become  money  in  another  place  or 
at  another  time,  without  actual  transfer,  and  not  merely  makes 
credit  the  equivalent  of  money,  but  it  represents  and  carries 
with  it  the  accumulated  credit  of  all  who  become  partie.''  to 
the  paper. 


8  NOTES   AND   BILLS.  [CH.  1. 

We  have  thus  stated  at  some  length  our  views  of  the  purpose^ 
or  as  it  might  be  called,  in  technical  phrase,  the  final  cause, 
of  the  invention  and  use  of  negotiable  paper  in  the  forms  in 
which  it  is  now  commonly  employed,  because  we  believe  that  we 
reach,  in  this  way,  the  foundation  on  which  all  the  principles  of 
law  peculiar  to  negotiable  paper  finally  rest.  For  the  law  exists 
for  the  sake  of  those  interests  which  it  defines  and  guards,  and 
is  adequate  to  its  object  or  otberwise,  exactly  in  the  proportion 
in  which  it  actually  subserves  or  hinders  the  purposes  of  tbose 
institutions  or  usages  for  which  it  lays  down  the  rules.  In  tbe 
present  instance,  the  law  of  negotiable  paper  is  what  it  should 
be,  in  the  degree  in  which  it  causes  or  permits  negotial)le  paper 
to  become  that  exact  representative  of  money,  which  such  paper 
was  invented  and  is  used  for.  And  we  shall  be  able  to  see, 
witli  great  clearness,  that  the  principles  of  this  law  are  very 
accurately  adapted  to  this  end.(e) 

We  shall  find  it  useful  to  look  at  this  end  and  purpose,  when 
we  are  seeking  to  determine  what  are,  and  what  are  not,  the 
true  principles  of  this  law.  And,  perbaps,  if  we  find  rules 
still  in  force,  or  held  by  one  court  or  another,  which  cannot 
be  regarded  as  well  adapted  to  carry  out  this  representation 
of  money  by  paper,  and  make  it  secure,  safe,  and  effectual,  we 


(e)  The  most  striking  characteristic  of  money,  as  distinguished  from  otlicr  species  of 
proi)erty,  is  the  facility  and  freedom  with  which  it  circulates.  By  means  of  the  stamp, 
its  precise  value  is  ascertained  by  mere  inspection  ;  and,  by  a  rule  of  law,  which  wo 
pliall  notice  hereafter,  the  possession  of  the  bearer  is  conclusive  evidence  of  title,  for 
the  protection  of  those  who  deal  with  him  in  good  faith.  Any  one  taking  it,  therefore, 
in  the  course  of  business,  need  look  no  further  tlian  to  the  face  of  the  coin  and  the  pos- 
session of  the  person  from  whom  he  receives  it.  These  are  qualities  which  every  repre- 
hcntative  of  money  must  possess  in  order  to  answer  its  purpose  eftectually  ;  and  we  shall 
soe  that  negotiable  paper  does  possess  them  in  an  eminent  degree.  In  (.lihson  r.  Minct, 
1  II.  Bl  600,  K//re,  C.  B.  said:  "  Kverything  which  is  necessary  to  be  known,  in  order 
that  it  may  be  seen  whether  a  writing  is  a  bill  of  exchange,  and  as  such  by  the  custom 
of  merchants  partakes  of  the  nature  of  a  specialty,  and  creates  a  debt  or  duty  by  its 
own  proper  force,  whether  by  the  same  custom  it  be  assignable,  and  how  it  shall  be 
assigned,  and  whether  it  has  in  fact  l)een  assigned  agreeable  to  the  custom,  ajjpears  at 
once  by  the  bare  inspection  of  the  writing  ;  with  the  circumstance,  in  the  ease  of  a  bill 
payable  to  bearer,  of  that  bill  being  in  the  possession  of  him  who  claims  title  to  it.  Tho 
wit  of  man  caniKjt  dcvi.se  a  thing  better  calculated  for  circulation.  The  value  of  the 
writing,  the  a.ssignable  ([uality  of  it,  and  the  |)articular  mode  of  assigning  it,  are  created 
and  determined  in  the  original  frame  and  constitution  of  the  instrument  itself;  and  the 
|)arty  to  whom  such  a  bill  of  exchange  is  tendered  has  oidy  to  read  it.  need  look  no 
fiiilhcr,  and  lias  nothing  to  do  with  any  private  iiistory  that  may  belong  to  it." 


en.  I.]  ORIGIN    AND   FUNCTION    OF   NOTES    AND   BILLS.  9 

may  be  able  to  discover  that  these  rules  have  been  l)roiight 
from  the  common  law,  where  their  use  and  })ur[)Ose  were  very 
different,  and  have  not  yet  been  moulded  cither  by  usage  or 
adjudication,  that  is,  either  by  merclumts  or  by  courts,  into  a 
suitable  conformity  with  the  nature  and  objects  of  this  peculiai 
class  of  mercantile  contracts. 

It  is  quite  important  to  remember,  that  it  is  this  element  of 
negotiabUUy  which  makes  a  contract  founded  upon  paper  thus 
adapted  for  circulation  different  in  many  important  particulars 
from  other  contracts  known  to  the  common  law.  Fur  this  very 
characteristic  quality  of  negotiability  was  itself  unknown  to  the 
common  law.  A  simple  promissory  note,  or,  in  other  words,  a 
written  promise  to  pay  money,  must  have  been  in  use  among  men 
almost  as  long  as  the  art  of  writing.  Indeed,  references  to  just 
such  an  instrument  as  this  are  found  in  the  civil  law.( /)  But 
when  negotiable  promissory  notes  were  first  used,  and  when  they 
were  first  recognized,  with  all  the  negotiable  qualities  which  now 
belong  to  them,  by  tlie  law  of  England,  are  questions  of  consid- 
erable difficulty.  In  1704,  a  statute  of  Queen  Anne  {g-)  enacted, 
"  That  all  notes  in  writing  that  shall  be  made  and  signed  liy  any 
person,  &c.,  whereby  such  person,  &c.  shall  promise  to  pay  to 
any  other  person,  &c.,  his,  her,  or  their  order,  or  unto  l)earer, 
any  sum  of  money  mentioned  in  such  note,  shall  be  taken  and 
construed*  to  be,  by  virtue  thereof,  due  and  payable  to  any  such 
person,  &c.  to  whom  tiie  same  is  made  payable  ;  and  also  every 
such  note  payable  to  any  person,  &c.,  his,  her,  or  tiieir  order, 
shall  be  assignable  or  indorsable  over,  in  the  same  manner  as 
inland  bills  of  exchange  are  or  may  be,  according  to  the  cus- 
tom of  merchants  ;  and  that  the  person,  &c.  to  wiiom  such  sum 
of  money  is  or  sliall  be  by  such  note  made  payable,  shall  and  may 
maintain  an  action  for  the  same,  in  such  manner  as  he,  she,  or 
they  might  do  upon  any  inland  bill  of  exchange,  made  or  drawn 
according  to  the  custom  of  merchants,  against  the  person,  &c. 
who  signed  the  same ;  and  that  any  person,  &c.  to  whom  such 
note  that  is  payable  to  any  person,  <fec.,  his,  her,  or  their  order,  is 
uidorsed  or  assigned,  or  the  money  therein  mentioned  ordered  to 
be  paid  by  indorsement  thereon,  shall  and  may  maintain  his,  her, 


(/)  V)\'^.  lib.  22,  tit.  1,  41,  §  2;  Dig.  lib.  2,  tit.  U,  47. 
(g)  3  and  4  Anne,  c.  9. 


10  NOTES   AND   BILLS.  [CH.  I. 

or  their  action  for  such  sum  of  money,  either  against  the  person, 
&c.  who  signed  such  note,  or  against  any  of  the  persons  that 
indorsed  the  same,  in  like  manner  as  in  cases  of  inland  bills  of 
exchange." 

The  preamble  of  this  statute  recites  as  the  cause  of  it,  that 
promissory  notes  had  been  held  not  negotiable.  This  doctrine  is 
generally  ascribed  to  Lord  Holt,  who  is  considered  as  urging  it 
with  much  pertinacity,  against  the  wishes  and  opinions  of  his  re- 
luctant brethren.  But  it  seems  as  if  he  held  a  promissory  note 
payable  to  order  to  be  non-negotiable  in  form,  but  not  in  sub- 
stance :  for  he  says,  in  the  case  of  Buller  v.  Crips, (A)  which  was 
determined  in  1702,  and  to  which  the  Parliament  probably  re- 
ferred especially  :  "  If  the  indorsee  had  brought  this  action  against 
the  indorser,  it  might  peradventure  lie  ;  for  the  indorsement  may 
be  said  to  be  tantamount  to  the  drawing  of  a  new  bill  for  so 
much  as  the  note  is  for  upon  the  person  that  gave  the  note." 
And  certainly  the  indorsee  then  would  not  claim  as  assignee  of 
the  note,  but  as  indorsee  under  the  law  merchant.  Nor  can  it  be 
said  that  the  statute  of  Anne,  by  the  words  in  the  preamble,  "  it 
hath  been  held,"  <fcc.,  affirms  this  to  have  been  the  law  ;  but  the 
better  construction  may  be,  that  the  Parliament  thought  the  court 
mistaken,  and  hastened  to  prevent  their  erroneous  decision  from 
becoming  law,  by  their  controlling  statute.  This  view  is,  per- 
haps, supported  by  the  language  used  in  respect  to  Lord  IIoICs 
ruling  on  this  point ;  thus,  in  Grant  t'.  Vaughan,(i)  Sir  F.  Norton 
and  Mr.  Dunning,  on  behalf  of  the  plaintiff,  remarked,  that  he 
was  "  peevish  "  ;  and  Lord  3I(iHs/ickl  said,  "  Lord  Ho/t  got  into 
a  dispute  with  the  city  aljout  it "  ;  by  the  city,  meaning  the  mer- 
chants of  Londfjn.  Li  the  same  case,(y)  Lord  Mansfield  spoke 
of  the  '"  first  struggle  of  the  merchants,"  which  "  made  Holt  so 
angry  with  them,"  and  though  he  thinks  the  mcrclnints  were  in 
the  wrong,  he  says  the  reasons  given  by  the  judges  "  are  equally 
ill-founded."  This  (question  may  liave  some  ini])()itaiu;e  ;  be- 
cause it  is  in  fact  tlie  question,  Wiiat  were  notes  of  this  kind,  by 


(/()  f)  Mod.  2'J.  This  iu'tioii  was  l)y  iiii  imlorscc  of  a  ])riiTniss()r_v  iiott;  n^ains*  tha 
maker;  ami  Lord  Jfull  was  of  o])iiiion  tliat  tlic  action  would  not  iif,  litit  no  judtjinent 
was  given. 

(i)  3  Hurr.  ir)L'0. 

{j)   I  W   IJL  483,  487. 


Cll.  I.J  OUIGIN    AND    FUNCTION    OF   NOTES   AND    BILLS.  11 

the  law  of  England,  before  the  statute  of  Auue  ?  And  this  ques- 
tion is  again  the  question,  Wliat  is  the  law  in  respect  to  thera  iu 
those  of  our  States  in  which  the  statute  of  Anne  is  not  in  force  ; 
It  is  true  that  in  most,  or  perhaps  all,  of  these  States,  other  stat- 
utory provisions,  or  a  course  of  adjudication,  have  placed  these 
notes  on  a  somewhat  similar  ground  with  that  which  they  oc- 
cupy by  the  statute  of  Anne  ;  but  not,  perhaps,  so  as  to  render 
quite  unimportant  the  question.  What  was  the  law  before  this 
ittatute  ?  We  have  not  space  to  examine  this  question  at  length, 
and  upon  the  authorities,  but  will  content  ourselves  with  saying, 
that  we  incline  to  hold,  first,  that  foreign  negotiable  bills  were  in 
use  and  were  known  to  the  law  long  before  negotiable  notes  were 
known  ;  (k)  and,  second,  that  inland  negotiable  bills  were  in  use 
before  negotiable  notes,  which,  however,  is  not  quite  certain  ;  (/) 
third,  that  inland  bills  and  notes  were  confounded  together  in  the 
use  of  them  by  merchants,  and  were  considered  as  the  same 


(L-)  It  is  certain  tliat  foreign  bills  of  exchange  were  known  to  tiie  courts  as  early  as 
the  reign  of  Elizabeth,  for  there  are  extant  precedents  of  declarations  upon  them  of  that 
period.  See  RastcU's  Entries,  10  a,  .338  a.  The  earliest  reported  case  in  which  they 
are  mentioned  is  Martin  v.  Boure  (1  Jac.  1),  Cro.  Jac.  6. 

(/)  In  Broniwich  v.  Loyd,  2  Lutw.  1.585,  Trebij,  C.  J.  said  :  "Bills  of  exchange  at 
first  were  extended  only  to  merchant  strangers  trafficking  with  English  merchants,  and 
afterwards  to  inland  bills  between  merchants  trafficking  one  with  another  here  in  Eng- 
land, and  then  lo  all  persons  trafficking  and  negotiating,  and  recently  to  all  persons, 
whether  trafficking  or  not."  The  better  opinion  is,  that  inland  bills  of  exchange  came 
into  use  about  the  middle  of  the  seventeenth  century.  The  earliest  case  in  the  books, 
which  api)ears  clearly  to  have  been  upon  an  inland  bill,  is  Chat  v.  Edgar,  1  Keb.  636 
(1663).  In  that  case,  a  butcher,  having  bought  cattle  of  the  plaintitf,  who  was  a  grazier 
in  Norfolk,  came  to  the  defendant,  who  was  a  parson,  and  desired  him  (as  he  liad 
money  in  London)  to  draw  a  bill  on  J.  S.  in  London,  in  whose  hands  it  was,  payable 
to  the  plaiiitilF,  and  that  he  would  repay  the  parson  in  the  country.  The  parson  drew 
the  bill,  with  private  advice  to  J.  S.  not  to  pay  the  plaintiff  till  he,  the  parson,  had 
received  the  money  of  the  butcher,  who  broke  and  became  insolvent;  and  so,  on  default 
of  payment  by  J.  S.,  the  plaintifl"  brouj,dit  bis  action  against  the  parson,  as  drawer  of 
the  bill.  No  objection  appears  to  have  been  made  on  the  ground  that  the  bill  was 
inland.  In  BuUer  v.  Crips,  6  Mod.  29  (1702),  Holt,  C.  J.  said :  "I  remember  when 
actions  uj)on  inland  bills  of  exchange  did  first  begin  ;  and  there  they  laid  a  particular 
custom  between  London  and  Bristol ;  and  it  was  an  action  against  the  acceptor;  the 
defendant's  counsel  would  put  them  to  prove  the  custom ;  at  which,  Ilale,  C.  J.,  who 
tried  it,  laughed,  and  said  they  had  a  hopeful  case  of  it.  And  in  my  Lord  Xurtli's 
time  it  was  said,  that  the  custom  in  that  case  was  part  of  the  common  law  of  England  ; 
and  these  actions  since  became  frequent,  as  the  trade  of  the  nation  did  increase  ;  and 
all  the  difference  between  foreign  bills  and  inland  liills  is,  that  foreign  bills  must  be 
protested  befoiv  a  public  notary  before  the  drawer  can  be  charged,  but  inland  bills 
need  no  protest." 


12  KOTES   .\XD    BILLS.  [CH.  I 

thing,  both  by  them  and  by  some  of  the  courts  ;  (m)  fourth,  that 
those  notes,  although  not  always  discriminated  by  name  from 
bills  of  exchange,  were  certainly  in  common  use  before  that 
statute,  as  may  be  inferred  from  the  insisting  of  the  merchants 


{ni)  For  this  reason  it  is  impossible  to  trace  the  history  of  promissory  notes,  prior  to 
the  statute  of  Anne,  with  any  great  degree  of  accuracy.  In  (irant  v.  Vaugiian,  3  Burr. 
1.525,  Lord  Munsjic-hl  said  :  "  Upon  looking  into  the  reports  of  the  cases  on  this  head, 
in  tlie  times  of  King  William  the  Third  and  Queen  Annj,  it  is  difficult  to  discover  by 
them  when  tlie  question  arises  upon  a  bill,  and  when  upon  a  note ;  for  the  reporters  do 
not  express  themselves  with  sufficient  precision,  but  use  the  words  '  tiote'  and  '  hill'  pro- 
miscuously." The  truth  probably  is,  that  the  term  promissori/  note  was  not  much  in  use 
prior  to  the  statute  of  Anne.  In  Lord  Hull's  time,  the  question  was,  not  wiiether  the 
instruments  which  are  now  known  as  promissory  notes  were  negotiable,  as  distinct  and 
different  instruments  from  bills  of  exchange,  but  whether  they  were  bills  of  exchange. 
This  sufficiently  appears  from  the  cases  of  that  period.  Thus,  in  Gierke  ;;  Martin,  2 
Ld.  Raym.  757,  the  plaintiff  counted  upon  the  custom  of  merchants,  as  upon  a  bill  of 
exchange  ;  and  showed  that  the  defendant  gave  a  note,  subscribed  by  himself,  by  which 

he  promised  to  pay to  the  plaintiff  or  his  order.     A  verdict  having  been  given  for 

])Iaintiff,  it  was  moved,  in  arrest  of  judgment,  that  this  note  was  not  a  bill  of  exchange 
within  tiie  custom  of  merchants,  and  therefore  the  plaintiff,  having  declared  upon  it 
as  such,  was  wrong.  It  was  argued  by  Shower,  for  the  plaintiff,  that  this  note,  being 
payable  to  the  plaintiff  or  his  order,  was  a  bill  of  exchange,  inasmuch  as  by  its  nature 
it  was  negotiable  ;  that  there  was  no  difference  in  reason  between  a  note  which  saith, 
"  I  promise  to  pay  to  J.  S.  or  order,"  &c.,  and  a  note  which  saith,  '•  1  pray  you  to  pay 
to  J.  S.  or  order,"  &c. ;  they  were  both  equally  negotiable  ;  and  to  make  such  a  note  a 
bill  of  exchange  could  be  no  wrong  to  the  defendant.  "  But  Holt,  C.  J.  was  totis  viri- 
btis  against  tlic  action  ;  and  said  that  this  note  could  not  be  a  bill  of  exchange.  That 
the  maintaining  of  these  actions  upon  such  notes  were  innovations  ujion  the  rules  of 
the  common  law;  and  that  it  amounted  to  the  setting  up  a  new  sort  of  specialty  un- 
known to  the  common  law,  and  invented  in  Lombard  Street,  which  attempted  in  these 
matters  of  bills  of  exchange  to  give  laws  to  Westminster  Hall.  That  the  continuing 
to  declare  upon  these  notes  upon  the  custom  of  merchants  proceeded  from  obstinacy 
and  opinionativeness,  since  lie  had  always  expressed  his  opinion  against  them,  and 
since  there  was  so  easy  a  method,  as  to  declare  upon  a  general  im/diitalus  ussiimiisit 
for  money  lent,"  &c.  And  sec  Potter  v.  Pearson,  2  Ld.  Raym.  759  ;  Burton  v.  Soutcr, 
2  Ld.  Raym.  774;  Williams  v-  Cutting,  2  Ld.  Raym.  825,  7  Mod  154.  BuUer  v.  Crips, 
6  Mod.  29,  was  an  action  upon  a  note  by  the  indorsee  against  the  maker  ;  and  the 
plaintiff  declared  upon  the  custom  of  merchants  as  upon  a  bill  of  exchange.  Upon  a 
motion  in  arrest  of  judgment,  lloll,  C.  J.  said  :  "  The  notes  in  question  arc  only  an  in- 
vention of  Tin;  GOM).SMiTiis  in  Lnwixml  Street,  who  had  a  mind  to  make  a  law  to  bind 
all  those  that  did  deal  with  them  ;  and  sure  to  allow  such  a  note  to  carry  any  lien  with 
it  were  to  ttn-n  a  piece  of  ]iapcr,  which  is  in  law  but  evidence  of  a  parol  contract,  into 
u  specialty  ;  and  besides,  it  would  empower  one  to  a.ssign  that  to  another  which  he 
could  not  have  himself;  for  since  he  to  whom  this  note  was  tnade  could  not  have  this 
action,  how  can  his  assignee  have  it?  And  these  notes  arc  not  in  the  natine  of  bills  of 
exchange;  for  the  reason  of  the  custom  of  l)ills  of  exchange  is  for  the  expedition  of 
trade  and  its  safety  ;  and  likewise  it  hinders  the  exportation  of  money  out  of  the  realm" 
At  another  day  he  said,  "that  he  had  desired  to  speak  with  two  of  the  most  famous 


CH.  I.]  ORIGIN    AND    FUNCTION    OF   NOTES    AND    BILLS  13 

on  the  great  mischief  which  would  result  from  the  denial  of  their 
negotiability,  they  telling  Lord  Holt  "  that  it  was  very  frequent 
with  them  to  make  such  notes,  and  that  they  looked  upon  them 
as  bills  of  exchange,  and  that  they  had  been  used  for  a  matter 
of  thirty  years  "  :  [n)  and  fifth,  that  these  notes  were,  therefore,  at 
the  time  the  statute  was  made,  negotiable  by  the  law  merchant 
of  England,  which  was  and  is  as  much  a  part  of  the  law  of  Eng- 
land as  —  to  use  the  strong  language  of  Christian  —  the  laws 
relating  to  marriage  or  murder. (o) 


merchants  in  London,  to  be  informed  of  the  mighty  ill  consequences  that  it  was  pre- 
tended would  ensue  by  obstructing  this  course  ;  and  that  tliey  had  told  him  it  was 
very  frequent  with  them  to  make  such  notes,  and  that  they  looked  upon  them  as  bills 
of  exchange,  and  that  they  had  been  used  for  a  matter  of  thirty  years,  and  that  not 
only  notes,  but  bonds  for  money,  were  transferred  frequently,  and  indorsed  as  bills  of 
exchange." 

()i)  See  preceding  note. 

(o)  1  Bl.  Com.  75,  n.  This  question  is  fully  considered  in  I  Cranch,  367,  Appen- 
dix,  n.  A,  in  a  learned  note  by  the  reporter.  And  see  Irvin  v.  Maury,  1  Misso.  194; 
Dunn  V.  Adams,  1  Ala.  527,  where  it  was  held  that  promissory  notes  were  negotiable, 
independently  of  the  statute  of  Anne. 


14  NOTES   AND   BILLS.  [CH.  D 


CHAPTER    II. 

OF    PROMISSORY    NOTES, 


SECTION    I. 

DEFINITIONS. 

A  PROMISSORY  note  is,  in  its  simplest  form,  only  a  written 
promise.  Almost  always,  however,  it  is  a  promise  to  pay  money. 
He  who  promises  signs  the  note  ;  and  the  promise  is  made  to  a 
specified  promisee,  or  to  him  or  his  order,  or  to  the  promisor 
or  his  order,  or  to  bearer  or  holder. 

The  promisor  is  considered  as  making  the  note,  and  is  called 
the  maker.  The  promisee  is  called  the  payee.  Where  the 
promise  is  to  pay  to  a  specified  payee,  without  further  words, 
the  note  is  not  negotiable.  Such  a  promissory  note  is  little 
more  than  evidence  of  indebtedness,  although  there  are  some 
rules  of  law  which  arc  peculiar  to  this  instrument.  These  we 
will  consider  hereafter.  At  present,  we  speak  particularly  of 
a  note  made  payable  to  order  ;  it  may  be  to  the  promisor  or 
order,(;?)  to  the  promisee  or  order,  to  the  order  of  the  promisor, 
or  to  the  order  of  the  promisee  ;  (r/)  in  either  case,  and  equally, 
it  is  a  neg-oiiable  note. 

The  word  "  negotiable,"   from   the   Latin   word   "  ncgotium," 


(p)  Sec  post,  p.  18,  note  v. 

(7)  It  seems  to  have  been  once  .1  matter  of  doubt  wliethcra  note  p:»y:iblc  to  the  "  order 
of  A.  B."  was  entirely  equivalent  to  one  payable  to  "  A.  B.  or  his  order,"  it  being  ob- 
jected that  in  tlie  former  case  no  one  but  an  indorsee  of  A.  B.  could  sue  upon  the  note, 
and  that  A.  B.  himself  could  not,  at  least  without  indorsinir  it  to  hinT^cIf  But  it  was 
long  since  settled,  that  a  bill  or  note  payable  to  a  man  and  his  order,  or  to  his  order 

only,  is  one  and  the  same.     See  Fisher  v.  Pomfrct,  12  Mod.  125  ;  v.  Ormston, 

10  Mod.  286  ;  Frederick  i-.  Cotton,  2  Show  8  ;  Smith  v  M'Clure,  5  Fust,  476.  In 
this  last  case  Lord  Elloihorowjh  said  :  "A  bill  ])ayable  t^  a  man's  own  order  was  pay- 
able to  himself,  if  he  did  not  order  it  to  be  pai<l  to  any  other."  And  see  Sherman  ► 
Goble,  4  Conn.  246  ;  Iluiing  v.  Ilugg,  1  Watts  &  S.  418. 


CH.  n.]  DKFINITIONS.  15 

which  is  adequately  translated  by  "  business,"  is  given  to  notes 
of  this  description,  because  they  derive  from  this  word  "order" 
the  capacity  of  entering  into  commercial  business  as  an  instru- 
ment of  the  greatest  importance.  By  far  tiie  greater  part  of  the 
business  of  this  country  is  done  by  means  of  them.  The  reason 
why,  by  the  use  of  this  word,  they  become  this  instrument,  is, 
that  if  A  promises  to  pay  B,  no  one  but  A  and  B  are  parties 
to  this  contract ;  no  one  else  can  become  a  party  to  it,  so  as 
to  enforce  it  in  his  own  name,  in  the  same  way,  and  with  the 
same  effect,  as  if  he  had  been  an  original  party.  A  note  which 
is  not  to  order,  or  not  negotiable,  can  be  transferred,  and  the 
new  owner  collect  it  in  a  certain  way  and  under  certain  cir- 
cumstances, which  will  be  hereafter  considered.  But  if  the  note 
be  payable  to  order,  it  is  a  very  different  instrument.  Then,  A 
promises  not  merely  to  pay  B,  but  either  B,  or,  at  B's  election, 
such  other  person  as  B  may  order  A  to  pay  the  note  to.  There- 
fore, when  B  orders  A  to  pay  the  note  to  C,  it  follows  that  C 
may  claim  payment  as  if  the  note  had  been  originally  payable 
to  himself,  or,  in  other  words,  C  stands  fully  in  the  place  of  B. 
And  if  B  orders  A  to  pay  the  note  to  C  or  his  order,  then  C 
has  the  same  power  of  substituting  another  that  B  originally 
had,  and  this  substitute  may  have  the  same  power,  and  this 
indefinitely.  This  order  is  regularly  made  by  writing  on  the 
back  of  the  note  ;  or,  in  the  language  of  the  law  merchant,  by 
indorsement. 

It  was  once  questioned  whether  the  negotiability  of  a  note, 
created  by  the  use  of  the  words  "  or  order,"  was  not  exhausted 
by  the  first  order  given  ;  that  is,  by  the  first  indorsement.  It 
is  now,  however,  well  settled,  that  these  words  give  to  a  bill  or 
note  a  permanent  negotiability,  so  that  an  indorsement  gives  to 
any  indorsee  the  right  of  further  indorsement,  and  the  same  to 
his  indorsee,  and  so  on,  indefinitely ;  and  therefore  these  words 
"or  order"  never  need  to  be  repeated  in  the  indorsement. (r) 

(>•)  This  was  first  decided  in  More  v.  Manning,  1  Comyns,  311.  That  was  an  action 
of  assumpsit  upon  a  promissor}'  note,  made  by  the  defendant,  and  payable  to  one 
Statluvn  and  order;  Stathain  assigned  it  to  Wither/iead,  and  Wkherhtad  to  the  plaintiff  ; 
and  upon  a  demurrer  to  the  dechvration  an  cxce])tion  was  taken,  because  the  assignment 
was  made  to  Witherhead,  witliout  saying  lo  him  and  order,  and  then  lie  could  not  assign 
it  over ;  for  by  this  means  Stathain,  wlio  iiad  assigned  tlie  note  to  Witherhead,  witliout 
6ul)jecting  himself  to  his  order,  would  be  made  liable  to  be  sued  by  any  subsequent 
indorsee.     "And  to  this  tlic  chief  justice  at  first  inclined,  but  afterwards  it  was  re- 


16  NOTES   AND    BILLS.  [CH    IL 

It  lias  even  been  doubted  whether  an  indorser  can,  by  a  re- 
strictive indorsement,  limit  or  prevent  indorsement  by  the  in- 
dorsee, (i)  It  is,  however,  now  quite  clear,  that  indorsements  may 
be  made  restrictive,  in  any  way  that  the  indorser  pleases,  by  the 


solved  by  the  whole  court  that  it  was  good.  For  if  the  original  bill  was  assignable, 
(as  it  will  be  if  it  be  payable  to  one  and  his  order,)  then  he  to  whonisoever  it  is  as- 
signed has  all  the  interest  in  the  bill,  and  may  assign  it  as  he  pleases."  A  few  years 
later,  in  Acheson  i-.  Fountain,  1  Stra.  557,  it  appeared  that  the  plaintiff  had  declared 
upon  an  indorsement  made  by  WiUiam  Abercrombie,  whereby  he  appointed  the  pay- 
ment to  be  to  Louisa  Acheson  or  order ;  and  upon  producing  the  bill  in  evidence,  it 
appeared  to  be  payable  to  Abercrombie,  or  order ;  but  the  indorsement  was  only  in  these 
words,  "Pray  pay  the  contents  to  Louisa  Acheson";  and  therefore  it  was  objected 
that  the  indorsement,  not  being  to  order,  did  not  agree  with  the  plaintiff's  declaration. 
"  But  upon  consideration,  the  whole  court  were  of  opinion  it  was  well  enough,  that 
being  the  legal  import  of  the  indorsement,  and  that  the  plaintiff  might  upon  this  have 
indorsed  it  over  to  another,  which  would  be  the  proper  order  of  the  first  indorser." 
But  the  question  was  not  set  at  rest  until  the  case  of  Edie  v.  East  India  Co.,  2  Burr. 
1216.  That  was  an  action  upon  a  foreign  bill  of  exchange,  drawn  upon  and  accepted 
by  the  defendant.  The  bill  was  payable  to  one  Camjibell  or  order,  and  was  indoised 
by  him  to  one  Ogilby,  and  by  Ogilby  to  the  plaintiff.  The  indorsement  to  Ogilby 
was  without  the  words  "or  order" ;  and  it  would  seem  from  the  case  that  it  was 
made  to  him  as  the  agent  or  servant  of  Campbell,  and  without  consideration.  After 
the  indorsement  to  the  plaintiff,  Ogilby  became  insolvent,  and  the  question  was,  whether 
the  plaintiff  or  Campbell  should  bear  the  loss.  Upon  the  trial,  Lord  Munsjteld  per- 
mitted the  defendant  to  put  in  evidence  as  to  the  usage  of  merchants.  Whereupon  the 
cjishier  of  the  Bank  of  England  testified,  "that  the  bank,  if  they  ever  discounted  the 
bills  not  indorsed  to  order,  did  it  only  upon  the  credit  of  the  inilorser  ;  but  that  other- 
wise they  would  not  take  them,  not  considering  them  as  being  negotiable."  Another 
witness  testified  that  an  indorsement  without  these  words  was  restrictire  to  the  particular 
person  specified  in  the  indorsement,  and  was  merely  in  the  nature  of  a  jieisonal  authority 
to  receive  tiie  money.  On  the  other  hand,  a  notary-public,  called  by  the  plaintiff,  testi- 
fied, that  a  bill  was  "  negotiable,  notwithstanding  the  omission  of  these  words,  and 
that  no  objection  of  this  sort  was  ever  made.  Indeed,  if  the  bill  should  be  indorsed, 
'  Pay  the  contents  to  A.  B.  onlij'  it  was  looked  upon  to  be  a  restriction  of  the  payment 
to  A.  B.  personally."  His  Lordship  instructed  the  jury,  that,  by  the  general  law,  (laying 
the  usage  out  of  the  case,)  the  indorsement  would  follow  the  nature  of  the  original  bill, 
und  be  an  absolute  assignment  to  the  indorsee  or  his  order  ;  but  ujion  the  evidence  of 
usage,  he  left  the  question  to  the  jury,  who  found  a  verdict  for  the  defendant.  Upon 
a  motion  for  a  new  trial,  the  whole  court  held  that  the  evidence  of  usage  ought  not  to 
have  been  received,  because  the  law  was  settled  by  the  two  cases  cited  above.  And 
upon  the  nierits  of  the  question,  Lord  Mansfield  said  :  "A  draught  drawn  upon  one 
person,  directing  him  to  pay  money  to  another  or  order,  is,  in  its  original  creation,  not 
an  authority,  but  a  bill  of  exchange,  and  is  negotiable.  It  belongs  to  the  payee,  to  do 
what  he  thinks  proper  with  it,  and  to  use  it  as  best  suits  his  convenience.  It  is  his 
property;  and  he  may  assign  it  as  such,  and  to  whom  he  pleases;  and  his  direction 
'  to  pay  it  to  such  a  one,'  is  a  direction  '  to  pay  it  to  him  or  his  order  ' ;  for  he  assigns 
Jiis  whole  property  in  it,  and  has  had  a  valuable  consideration  for  .so  doing." 

(«)  Thus,  in  Kdie  v.  East  India  Co.,  2  Burr.  1216,  1220,  H7/;ho/,  J.  said  :  "There  is 
a  great  deal  of  difference  between  giving  a  naked  authority  to  receive  it  and  transfer- 


CH.  II.]  DEFIXniOXS.  IT 

use  of  express  and  definite  terms. (/)      We  shall  consider  this 
question  more  fnlly  hereafter,  when  treating  of  indorsement. 

If  the  note  be  made  by  A  and  be  ])ayable  to  A's  own  order, 
tlicre  is  then  no  payee  or  promisee,  until  A  orders  himself,  by  an 
indorsement  in  blank,  or  by  a  special  indorsement  to  pay  the 
note  to  B  or  C  or  some  one  else  ;  then  the  person  to  whom  pay- 
ment of  the  note  is  thus  ordered  to  be  made  becomes  the  payee 
or  promisee,  in  like  manner  as  if  his  name  had  been  originally 
inserted.  Such  a  note  indorsed  in  blank  is  equivalent  to  a  note 
payable  to  bearer. (m)  If  a  bill  be  drawn  on  the  drawer,  payable 
to  the  drawer  or  order,  the  drawer  may  accept  it,  and  indorse  it, 
and  thus  hold  all  these  relations  to  an  indorsee.  We  ap})rehond 
that  bills  .are  seldom  so  drawn,  but  notes  are  very  frequently 
made  payable  to  the  maker's  own  order,  and  indorsed  by  him. 
Indeed,  in  some  of  our  larger  cities,  the  majority  of  notes  given 
for  goods  are  made  in  this  way.  The  reason  is  obvious.  One 
who  receives  such  a  note  may  sell  it,  or  offer  it  for  discount, 
without  adding  his  own  name  so  as  to  be  liable  as  an  indorser  ; 
and  without  adding  his  name  together  with  the  words  "  without 
recourse,"  or  any  other  which  would  cast  suspicion.  For  a  simi- 
lar reason,  if  a  merchant  in  large  business  caused  only  the 
feeble  notes  which  he  took  to  be  indorsed  by  the  maker,  and  so 
made  transferable  without  his  own  indorsement,  this  again  would 
impair  their  credit.    If  therefore  he  wishes,  for  the  reasons  above 


ring  it  over  by  indorsement.  And  I  doubt  whether  he  can  limit  his  indorsement  of  it 
by  way  of  assignment,  or  transfer  to  another,  so  as  to  preclude  his  assignee  from 
assigning  it  over  as  a  thing  negotiable.  For  the  assignee  purchases  it  for  a  valuable 
consideration,  and  therefore  purchases  it  with  all  its  privileges,  qualities,  and  advan- 
tages, one  of  which  is  its  negotiability.  To  be  sure,  he  may  give  a  mere  naked 
authority  to  a  person  to  receive  it  for  him ;  he  may  write  upon  it,  '  Pray  pay  the 
money  to  my  servant  for  my  use  ' ;  or  use  such  expressions  as  necessarily  import  that 
he  does  not  mean  to  indorse  it  over,  but  is  only  authorizing  a  particular  person  to 
receive  it  for  him  and  for  his  own  use.  In  such  case,  it  would  be  clear  that  no  valuable 
consideration  had  been  paid  him.  But,  at  least,  that  intention  must  appear  upon  the 
face  of  the  indorsement.  Whereas  here  no  such  thing,  nor  anything  tending  to  it, 
appears  upon  the  face  of  the  indorsement ;  it  is  a  general  assignment  without  any 
restriction  at  all."  And  see,  per  Tindal,  C.  J.,  in  Cunliffe  v.  Whitehead,  3  Bing.  N.  C. 
828 ;  Gay  v.  Lander,  6  C.  B.  336 ;  Rice  v.  Stearns,  3  Mass.  225.  As  if  the  payee 
indorse,  "  Pay  the  contents  of  the  within  to  C.  D.  o)ili/." 

(0  Sec  Sigourney  v.  Lloyd,  8  B.  &  C.  622,  3  Man.  &  R.  58,  5  Bing.  525  ;  Treuttel 
V.  Barandon,  8  Taunt.  100  ;  Snee  v.  Prescot,  1  Atk.  245  ;  Ancher  v.  Bank  of  England, 
2  Doug.  637. 

(u)  Hooper  v  Williams,  2  Exch.  13. 

Vol.  I.— B 


18  NOTES   AXD   BILLS.  [CH.  n. 

Stated,  or  any  other,  to  have  his  notes  in  this  form,  he  would 
make  it  a  rule  to  have  all  his  notes  so  made.  Then  he  could 
indorse  what  notes  he  chose  to,  and  not  injure  any  by  withhold- 
ing his  indorsement,  (y) 

(v)  Notes  of  this  kind  are  now  common  in  England  as  well  as  in  this  country.  At 
what  precise  time  they  first  came  into  use,  and  what  was  the  occasion  which  gave  rise 
to  them,  it  is  impossible  to  say.  Baron  Parle,  in  Hooper  i-.  Williams,  2  Exch.  21,  char- 
acterizes them  as  "  securities  in  this  informal,  not  to  say  absurd  form,  probably  intro- 
duced long  after  the  statute  of  Anne,  —  for  what  good  reason  no  one  can  tell,  —  and 
become  of  late  years  exceedingly  common."  So  Chief  Justice  Wilde,  in  Brown  ?•.  De 
Winton,  6  C.  B.  342,  said  that  notes  in  this  form,  according  to  his  experience,  -which 
e.xtended  over  a  period  exceeding  forty  years,  were  very  far  from  uncommon.  They 
seem  not  to  have  attracted  the  attention  of  courts  until  a  recent  date.  It  has  al- 
waj's  been  the  received  opinion  in  this  country,  that  instruments  in  this  form  were 
negotiable  within  the  statute  of  Anne,  and  that  they  differed  in  no  material  particular 
from  notes  in  the  ordinary  form.  Such  also,  according  to  the  observation  of  eminent 
counsel  in  Brown  v.  De  AVinton,  was  the  received  opinion  in  England  until  the  case 
of  Flight  V.  Maclean,  16  M.  &  W.  51.  Since  that  case,  the  nature  and  construction 
of  instruments  of  this  kind  have  been  very  learnedly  and  elaborately  discussed 
by  the  three  principal  common  law  courts  in  Westminster  Hall.  The  case  of 
Flight  V.  Maclean  came  up  in  the  Court  of  Exchequer  in  1846.  The  declaration 
stated  that  the  defendant  made  his  promissory  note  in  writing,  and  thereby  promised 
to  pay  to  the  order  of  the  defendant  £  500  two  months  after  date,  and  that  the 
defendant  then  indorsed  the  same  to  the  plaintiff.  To  this  there  was  a  special  de- 
murrer, assigning  for  cause,  that  it  was  uncertain  whether  the  plaintiff  meant  to  charge 
the  defendant  as  maker  or  as  indorser  of  the  note,  and  that  a  note  payable  to  a  man's 
own  order  was  not  a  legal  instrument,  and  could  not  be  negotiated.  The  court  sus- 
tained the  demurrer  without  much  discussion,  "on  the  ground  that  the  instrument  in 
question,  made  payable  to  the  maker's  order,  was  not  a  promissory  note  within  the 
statute  of  Anne,  which  requires  that  a  promissory  note,  to  be  assignable,  shall  be  made 
payable  by  the  party  making  it  to  some  'oilier  person,'  or  his  order,  or  unto  bearer." 
During  the  argument,  however,  Parke,  B.  put  to  the  counsel  this  question  :  "  Though 
by  the  law  merchant  the  note  cannot  be  indorsed,  could  not  the  defendant  make  tliis  a 
promissory  note  by  indorsing  it  to  another  person  ?  "  This  case  was  followed  the  next 
year  in  the  Queen's  Bench  by  the  case  of  Wood  v.  Mytton,  10  Q.  B.  805,  in  which 
precisely  the  same  question  was  presented  as  in  Flight  v.  Maclean,  except  that  in  the 
latter  it  arose  on  a  motion  in  arrest  of  judgment,  whereas  in  the  former  it  arose  on  a 
special  demurrer.  The  question  was  argued  at  considerable  length,  and  Lord  Deiiman, 
after  a  very  minute  examination  of  the  statute  of  Anne,  held  that  the  instrument  de- 
clared on  was  a  promissory  note  within  the  terms  of  the  statute,  and  judgment  was 
given  for  the  plaintiff.  It  is  to  be  observed,  however,  that  Pallcson,  J.,  during  the 
argument  of  this  case,  put  to  the  counsel  a  question  similar  to  that  put  by  Baron 
Parke  in  Flight  v.  Maclean.  "  Whatever,"  said  he,  "may  be  the  case  with  respect  to 
a  note  like  this  before  indorsement,  may  it  not,  as  soon  as  it  is  indorsed,  come  within 
the  statute,  either  as  a  note  payable  to  hearer,  if  it  is  indorsed  in  blank,  or  as  a  note 
payable  to  the  person  designated,  if  it  is  indorsed  in  full  ? "  In  1 848  the  question  came 
up  again  in  the  Court  of  Exchequer,  in  the  case  of  Hooper  v.  Williams,  2  Exch.  13. 
The  instrument  declared  on  in  this  case  was  similar  to  those  in  the  two  former  cases, 
being  made  payal)lc  to  the  defendant's  own  order,  and  by  him  indorsed  in  blank.     The 


CH.  II.] 


DEFINITIONS.  19 


If  the  note  be  payable  to  bearer  or  holder,  then  the  promi:?^  is 
made  to  any  and  every  person  who  obtains  possession  of  the  note, 
and  presents  it  for  payment.  This  note  also  is  negotiable  ;  but 
in  a  somewhat  different  sense,  and  imder  a  somewhat  different 


pleader,  however,  adopting  the  suggestion  of  Mr.  Baron  Parke  and  Mr.  Justice  Patte- 
son,  dechired  as  upon  a  note  payable  to  bearer.  At  the  trial  the  defendant  objected 
that  there  was  a  variance  between  the  note  and  the  declaration,  and  the  case  coming 
before  the  court  in  banc  upon  this  objection,  Parke,  B.,  in  delivering  the  opinion  of  the 
court,  said:  "In  Flight  v.  Maclean,  this  court  held,  on  special  demurrer  to  the  first 
count  of  a  declaration  stating  a  note  payable  to  the  order  of  the  maker,  and  indorsed 
to  the  plaintiff,  that  the  count  was  bad,  such  a  note  not  being  within  the  statute  of 
Anne.  The  case  of  Wood  v.  Mytton  afterwards  came  on  in  the  Queen's  Bench.  It 
was  an  action  on  a  similar  note  indorsed  to  the  plaintiff.  After  verdict  for  the  plain- 
tiff, a  motion  was  made  in  arrest  of  judgment ;  and  the  court  discharged  the  rule,  hold- 
ing, after  a  minute  examination  of  all  the  provisions  of  the  statute  of  Anne,  that  such  a 
note  was  within  that  statute,  and  assignable  by  indorsement.  Though  these  decisions 
are  not  at  variance,  as  will  bo  afterwards  explained,  the  construction  of  the  statute  by 
the  two  courts  differs.  After  a  careful  perusal  of  the  statute,  we  must  say  that  we  do 
not  think  that  it  ever  contemplated  the  case  of  notes  payable  to  the  maker's  order, 
which  are  incomplete  instruments,  and  have  no  binding  effect  on  any  one  till  indorsed. 
The  Court  of  Queen's  Bench  thought,  that,  though  the  first  part  of  the  first  section  of 
the  statute  of  Anne  applied  only  to  notes  payable  to  another  person  or  his  order,  or  to 
bearer,  which  notes  it  makes  obligatory  between  the  parties  ;  yet  that  the  second  part 
applies  to  every  note  payable  to  any  person,  and  therefore  includes  a  note  payable  to 
the  maker  or  his  order.  It  appears  to  us  that  this  is  not  the  meaning  of  this  part  of 
the  section,  which  is,  as  we  think,  intended  to  make  those  instruments,  to  which  it  had 
previously  given  an  obligatory  effect  between  the  original  parties,  transferable  to  third 
persons,  so  as  to  enable  them  to  sue  upon  them  as  upon  the  transfer  of  bills  of  ex- 
change. The  previous  part  of  the  section  had  given  to  the  payee,  when  the  note  was 
made  payable  to  another  person,  or  to  another  person  or  order,  and  to  the  bearer, 
whoever  at  any  time  he  might  be,  a  right  to  sue  ;  thus  providing  entirely  for  notes  pay- 
able to  bearer,  whether  in  the  hands  of  the  original  or  a  subsequent  bearer.  And  then 
the  section  proceeds  to  make  the  class  of  notes  payable  to  a  person  or  order  transfer- 
able. We  think  that  the  legislature,  by  the  second  part  of  the  section,  could  only  mean 
to  make  that  instrument  which  gave  a  right  to  sue  assignable ;  and  no  right  to  sue 
could  exist  in  any  one,  in  the  case  of  a  note  payable  to  the  maker's  order,  until  the 
order  was  made  in  the  shape  of  an  indorsement ;  until  that  indorsement  was  made,  it 
was  an  imperfect  instrument,  and,  in  truth,  not  a  promissory  note  at  all,  and  conse 
qucntly  not  transferable  under  the  statute.  What,  then,  is  the  effect  of  the  indorsement 
to  another  person  1  AVe  think  it  was  to  perfect  the  incomplete  instrument,  so  that  the 
original  writing  and  indorsement  taken  together  became  a  binding  contract,  though  an 
informal  one,  between  the  maker  and  the  indorsee,  and  then,  and  not  till  then,  it  became 
an  assignable  note.  It  is  well  settled,  that  no  particular  form  of  words  is  necessary  to 
constitute  a  promissory  note.  If  a  man  draws  an  instrument  in  the  form  of  a  bill  of 
exchange  on  himself,  and  accepts  it,  it  is  a  promissory  note.  If  he  says,  '  I  pay  to 
A.  B.  £  100,'  and  adds  an  address  to  the  instrument,  it  may  be  declared  on  as  a  note. 
What,  then,  is  the  meaning  of  the  instrument  in  question  ?  Before  the  indorsement  it 
may  be  considered  to  be  a  promise  to  pay  £  150  two  months  after  date  to  the  person  to 
whom  the  maker  should  afterwards,  by  indorsement,  order  the  amount  to  be  paid,  such 


20  NOTES   AND   BILLS.  [CH.  H 

system  of  rules  from  those  notes  which  are  payable  to  some 
specific  promisee  or  order.  We  shall  speak  of  them  more  par- 
ticularly hereafter. 


indorsement  being  intended  to  have  the  same  operation  as  if  put  on  a  complete  note. 
If,  then,  the  indorsement  should  be  to  a  particular  person,  or  to  A.  B.  or  his  order,  it 
would  be  a  note  payable  to  that  person,  or  to  A.  B.  or  his  order ;  and  if  in  blank  it 
■would  be  payable  to  bearer,  in  like  manner  as  a  sum  secured  by  a  complete  note  would 
have  been  by  similar  indorsements.  It  may  follow  as  a  consequence,  that  the  holder 
might  fill  up  the  blank  indorsement  by  writing  over  it  his  own  name,  and  so  make  it 
payable  to  himself,  although  it  is  not  necessary  to  determine  that  point;  and,  reading 
the  note  as  payable  to  bearer,  any  one  may  afterwards  indorse  his  own  name,  and  so 
make  himself  liable  to  subsequent  holders,  as  the  indorser  of  a  complete  note  payable 
to  bearer  would  do.  It  appears  to  us,  then,  that  the  instrument  in  this  case  was,  when 
it  first  became  a  binding  promissory  note,  a  note  payable  to  bearer,  and  consequently 
was  properly  described  in  the  declaration.  This  view  of  the  case  reconciles  the  decision 
of  this  court  in  Flight  v.  Maclean  with  that  of  the  Queen's  Bench  in  Wood  v.  Mytton ; 
but  not  the  reasons  given  for  those  decisions.  In  the  case  in  this  court  the  declaration 
was  bad  on  special  demurrer,  as  it  did  not  set  out  the  legal  effect  of  the  instrument. 
In  that  in  the  Queen's  Bench,  the  motion  being  for  arrest  of  judgment,  the  declaration 
was,  in  substance,  good ;  for  it  set  out  an  inartificial  contract,  which  had  the  legal  effect 
of  a  valid  note,  payable,  as  stated  on  the  record,  to  the  plaintiff.  The  difterence  between 
the  two  courts  in  the  construction  of  the  statute  is  of  no  practical  consequence,  as,  in 
our  view  of  the  case,  securities  in  this  informal,  not  to  say  absurd,  form  are  still  not 
invalid  ;  and  it  miglit  be  of  much  inconvenience  if  they  were,  for  there  is  no  doubt  that 
this  form  of  note,  probably  introduced  long  after  the  statute  of  Aime,  and  for  what 
good  reason  no  one  can  tell,  has  become,  of  late  years,  exceedingly  common;  and  it  is 
obvious,  that,  until  they  arc  indorsed,  they  must  always  remain  in  the  hands  of  the 
maker  himself,  and  so  he  can  never  be  liable  upon  them."  Shortly  after  the  decision 
of  this  case,  the  same  question  came  up  in  the  Common  Bench,  in  the  cases  of  Brown 
V.  De  AVinton,  and  Gay  v.  Lander,  6  C.  B.  336.  In  Brown  v.  De  Winton  the  question 
came  up  in  the  same  shape  as  in  Wood  v.  Mytton,  and  Coltman,  J.,  in  giving  the  judg- 
ment of  the  court,  delivered  a  very  able  and  elaborate  opinion,  in  which  he  agreed  en- 
tirely with  tiie  view  taken  by  the  Court  of  Exche(iuer.  In  Gay  v.  Lander  the  question 
was  presented  in  a  little  different  light.  We  have  already  seen  that,  when  a  note  is 
made  jiayablc  to  A.  B.  or  his  order,  the  words  "  his  order  "  impart  to  the  note  a  per- 
manently assignable  quality,  into  whose  hands  soever  it  may  come ;  so  that,  though 
A.  B.  indorse  the  note  to  C.  D.  specially,  without  using  the  words  "or  his  order,"  yet 
C.  I),  may  indorse  it  in  turn  to  whomsoever  he  pleases.  The  point  raised  in  Gay  v. 
Lander  was,  whether  the  indorsement  should  receive  the  same  construction  in  the  case 
of  a  note  payable  to  the  order  of  the  maker  and  by  him  indorsed,  and  tlie  court  held 
that  it  should.  Coltman,  J.,  in  delivering  the  opinion,  said  :  "  We  think  that  the  prin- 
ci[)le  on  wliich  the  case  of  Brown  v.  De  Winton  was  decided  will  extend  to  this  case. 
Tiie  princiidc  on  which  that  case  was  decided  is,  that  the  note,  before  it  was  indorsed, 
was  in  the  nature  of  a  promise  to  pay  to  the  person  to  whom  the  maker  should  after- 
wards, by  indorsement,  order  the  amount  to  be  paid  ;  and  that,  after  the  note  is  indorsed 
and  circulated,  it  must  be  taken,  as  against  the  i)arty  so  making  and  indorsing  the  note, 
that  he  intended  that  his  indorsement  should  have  the  same  effect  as  an  indorsement  by 
the  payee  of  a  note  payable  to  the  order  of  a  person  other  than  tlie  maker  would  Iiave 
iiad.     Now  it  is  well  established  that,  if  a  note  be  made  payable  to  J.  S.  or  order,  and 


CII.  II.]  FORM  OF  PROMISSORY  NOTES.  21 

SECTION  II. 

OF  THE  FORM  OF  PROMISSORY  NOTES. 

Mr.  Chitty  says  that  the  usual  form  of  a  promissory  note  in 
England  is:  "  <£  oO  (or  other  proper  sum).  London  (or  other 
place),  1st  January,  1840  (or  other  proper  date).  Two  montlis 
after  date  (or  at  any  other  specified  time,  or  on  demand),  I  prom- 
ise to  pay  to  ]\Ir.  A.  B.  or  order,  fifty  pounds,  for  value  received. 
(Signed)  C  D. "(?/;)  In  America  a  common  form  is:  "  New 
York,  January  1,  1854.  Value  received,  I  promise  to  pay  A.  B. 
or  order,  one  thousand  dollars  in  four  months.  C.  D."  But  as 
no  special  form  is  necessary  in  law, (a;)  so  no  one  prevails  in 
practice  to  the  exclusion  of  others.  The  collocation  of  the  word? 
varies,  the  "  value  received  "  being  often  at  the  end  ;  and  some- 
times the  promise  is  directly  to  the  payee,  as  "  I  promise  A.  B. 
to  pay  him  or  his  order  "  ;  and  frequently  the  words  "  from  "  or 
"after"  "date"  are  added  to  the  time  of  payment,  although, 
when  not  added,  they  are  of  course  implied. 

Firms  doing  much  business  frequently  have  note-books  print- 
ed, like  check-books,  with  a  margin,  on  which  a  memorandum 
of  the  number,  date,  parties,  and  amount  may  be  entered  for 
future  reference  and  identification.  It  is  usual  in  such  printed 
forms  to  leave  the  date,  parties,  and  amount  in  blanlv  ;  but 
everything  may  be  printed  but  the  signature.  That  must  be 
in  writing.  It  has  been  held,  incautiously  we  think,  that  an 
indorsement   may   be   written   and   signed   in   pencil   only ;  (?/) 


J.  S.,  in  such  case,  indorses  the  note  specially  to  Smith  &  Co.,  without  adding  'or 
order,'  Smith  &  Co.  may  convey  a  good  title  to  any  other  person  by  indorsement." 
It  may,  perhaps,  be  inferred  from  wiiat  fell  from  Baron  Parlce  in  Hooper  v.  Williams, 
that  he  entertained  a  difFcrent  opinion  on  this  last  point,  but  the  point  did  not  arise 
in  that  case,  and  probably  his  attention  was  not  particularly  directed  to  it-  See 
Muldrow  V.  Caldwell,  7  Misso.  563;  Lea  v.  Branch  Bank,  8  Port.  Ala.  119  Scull 
r.  Edwards,  8  Eng.  24;  Blackman  v.  Green,  24  Vt.  17;  Little  v.  Rogers,  1  Met. 
108  ;  Potter  v.  Tyler,  2  Met.  58. 

(w)  Chitty  on  Bills  (9th  ed.),  516. 

(x)  Morris  r.  Lee,  1  Sti-a.  629,  2  Ld.  Raym.  1.396,  8  Mod.  362  ;  Brooks  v.  Elkins,  2 
M.  &  W.  74  ;  Wheatley  i'.  Williams,  1  M.  &  W.  533. 

(//)  Geary  v.  Physic,  5  B.  &  C.  234.  This  was  assumpsit  on  a  promissory  note  by  an 
indorsee  against  the  maker.  It  appeared  that  the  indorsement  was  in  pencil ;  and  it 
was  contended  by  the  counsel  for  the  defendant,  that  this  was  not  such  an  indorsement 
as  the  law  and  custom  of  merchants  required,  citing  Co.  Litt.  229  a,  where  Lord  Coke, 


22  NOTES   AND   BILLS.  [CH.  H. 

and  this  for  reasons  which  \rould  apply  as  well  to  the  note  itself. 
We  are,  however,  inclined  to  think  that  better  reasons  might  be 
drawn  from  the  nature  and  purpose  of  negotiable  promissory 
notes,  for  requiring  that  they  should  be  written  and  indorsed 
in  a  way  less  open  to  fraud  and  uncertainty  than  in  pencil. 
Perhaps  a  distinction  should  be  made  between  a  neg-oliable  prom- 
issory note,  which  should  in  every  respect  be  capable  of  becoming 
a  trustworthy  and  efficient  instrument  of  business,  and  a  note 


speaking  of  a  deed,  says  :  "  Here  it  is  to  be  understood,  that  it  ought  to  be  in  parch- 
ment or  in  paper.  For  if  a  writing  be  made  upon  a  piece  of  wood,  or  upon  a  piece  of 
linen,  or  in  the  bark  of  a  tree,  or  on  a  stone,  or  the  like,  &c.,  and  the  same  be  scaled  or 
delivered,  yet  is  it  no  deed,  for  a  deed  must  be  written,  either  in  parchment  or  paper, 
as  before  is  said,  for  the  writing  upon  these  is  the  least  subject  to  alteration  or  corrup- 
tion." But  the  court  held  the  indorsement  good.  And  Abbott,  C.  J.  said  :  "  There  is 
no  authority  for  saying,  that,  where  the  law  requires  a  contract  to  be  in  writing,  that 
writing  must  be  in  ink.  The  passage  cited  from  Lord  Coke  shows  that  a  deed  must 
be  written  on  paper  or  parchment,  but  it  does  not  show  that  it  must  be  written  in  ink. 
That  being  so,  I  am  of  opinion  that  an  indorsement  on  a  bill  of  exchange  may  be  by 
writing  in  pencil.  There  is  not  any  great  danger  that  our  decision  will  induce  indi- 
viduals to  adopt  such  a  mode  of  writing  in  preference  to  that  in  general  use.  The 
imperfection  of  this  mode  of  writing,  its  being  so  subject  to  obliteration,  and  the 
impossibility  of  proving  it  when  it  is  obliterated,  will  prevent  its  being  generally 
adopted.  There  being  no  authority  to  show  that  a  contract  which  the  law  requires  to 
be  in  writing  should  be  written  in  any  particular  mode,  or  with  any  specific  material, 
and  the  law  of  merchants  requiring  only  that  an  indorsement  of  bills  of  exchange 
should  be  in  writing,  without  specifying  the  manner  in  which  the  writing  is  to  be  made, 
I  am  of  opinion  that  the  indorsement  in  this  case  was  a  sufficient  indorsement  in  writ- 
ing within  the  meaning  of  the  law  of  merchants,  and  that  the  property  in  the  bill 
passed  by  it  to  the  plaintiff."  Bai/ley,  J. :  "I  think  that  a  writing  in  pencil  is  a  writ- 
ing within  the  meaning  of  that  term  at  common  law,  and  that  it  is  a  writing  within 
the  custom  of  merchants.  I  cannot  sec  any  reason  why,  when  the  law  requires  a  con- 
tract to  be  in  writing,  that  contract  shall  be  void  if  it  be  written  in  jjcncil.  If  the 
character  of  the  handwriting  were  thereby  wholly  destroyed,  so  as  to  be  incapable  of 
proof,  there  might  be  something  in  tlie  objection  ;  but  it  is  not  thereby  destroyed,  for, 
when^he  writing  is  in  pencil,  i)roof  of  the  character  of  the  handwriting  may  still  be 
given.  I  think,  therefore,  that  this  is  a  valid  writing  at  common  law,  and  also  that  it 
is  an  indorsement  according  to  the  usage  and  custom  of  merchants ;  for  that  usage 
only  rc<|uires  that  the  indorsement  should  be  in  writing,  and  not  that  th.at  writing 
should  be  made  with  any  s|)eci(ic  materials." 

The  same  point  was  decided  in  Closson  v.  Steams,  4  Vt.  11  ;  Keed  v.  Rcnrk,  14 
Texas,  .'529  ;  Brown  v.  Butchers',  &c.  Bank,  0  Hill,  44.3  ;  Partridge  v.  Davis,  20  Vt. 
499,  50.3.  Testamentary  instruments  in  pencil  have  frequently  been  admitted  to  pro- 
liatc.  Sec  Byrnes  v.  Clarkson,  1  Phillim.  22;  Green  v.  Skii»wortli,  1  riiillim.  .5,3; 
Dickenson  i;.  Dickenson,  2  Phillim.  17.3.  So  it  has  been  held  that  a  memorandum 
in  pencil  is  sufficient  to  satisfy  the  Statute  of  Frauds.  Merritt  v.  Chison,  12  Johns. 
102,  8.  c.  no/n.  (Mason  v.  Bailey,  14  Johns.  484;  Draper  v.  Patlina,  2  Specrs,  292. 
And  in  McDowel  v.  Ciiambers,  1  Strob.  Eq.  347,  it  was  held  that  a  deed  in  pencil  was 
sufficient. 


CH.  II.]  FORM  OF  PROMISSORY  NOTES.  23 

not  negotiable,  in  which  evidence  of  indebtedness  is  all  that  is 
wanted.  The  same  remarks  would  apply  to  a  signature  or  in- 
dorsement by  initials,  on  which  a  similar  ruling  has  been  made.(c) 
The  signature  by  a  mark  is  admitted  from  necessity ;  but  we 
think  it  should  be  declared  and  attested  at  the  time,  in  writing, 
as  the  mark  of  the  maker,  although  it  may  not  be  quite  certain 
that  the  law  requires  this. (a) 

A  note  may  be  written  on  any  substance  capable  of  holding 
writing, (/!>)  although  paj)er  is  most  usual.  Perhaps  the  law  can 
put  no  other  check  or  limitation  on  this  than  to  say  that  cvery- 
tliing  unusual  about  a  note  subjects  it  to  suspicion  and  rigid 
scrutiny,  and  the  form,  the  manner,  and  materials  must  all  be 
compatible  with  the  requisite  certainty.  Thus,  if  the  signature 
be  in  the  body  of  the  note,  as  "  I,  A,  promise,"  &c.,  this  has 
been  declared  sufficient ;  but  it  is  suspicious. (c) 

We  have  said  that  no  particular  form  has  been  required  by 
law  ;  but  many  cases  have  turned  upon  the  question  whether 
there  was  precision  and  certainty  enough  in  an  instrument  to 
constitute  it  a  promissory  note.(f/)  Perhaps  it  would  be  difficult 
to  draw  from  the  cases  any  other  rule  than  that  a  note  must 
contain  a  legal  promise  for  the  certain  payment  of  a  certain 
sum,  and  that  the  maker  and  the  payee  must  be  designated 
with  sufficient  certainty.  If,  to  a  receipt  for  money,  the  words 
"  to  be  returned  when  called  for  "  are  added  ;  (e)  if  the  signer  of 


(c)  Merchants'  Bank  v.  Spicer,  6  Wend.  443  ;  Palmer  y.  Stephens,  1  Denio,  471.  And 
in  Brown  v.  Batchers',  &c.  Bank,  6  Hill,  443,  where  a  party  placed  the  figures  "1.2.  8." 
upon  tlie  back  of  a  bill  of  exchange,  in  pencil,  by  way  of  substitute  for  his  name,  in- 
tending thereby  to  bind  himself  as  indorser,  it  was  held  a  valid  indorsement,  though 
it  appeared  he  could  write. 

(«)  George  v.  Surrey,  Moody  &  M.  516,  was  an  a.'tioa  of  assumpsit  by  an  indorsee 
against  the  acceptor  of  a  bill  of  exchange  drawn  by  Ann  Moore,  payable  to  her  own 
order,  and  indorsed  by  her  to  the  plaintiff  A-ni  Moore  drew  the  bill  by  her  mark,  and 
it  was  indorsed  by  mark;  the  writing,  "Ann  Moore,  her  mark,"  on  the  indorsement, 
being  in  the  plaintiff's  handwriting.  A  witness  was  called  to  prove  tlie  indorsement, 
who  stated  lie  had  frequently  seen  Ann  Moore  make  her  mark  and  so  sign  instruments, 
and  he  pointed  out  sc  me  peculiarity.  Tindal,  C  J.,  after  some  hesitation,  admitted 
Ihe  evidence  as  competent,  and  the  plaintiff  had  a  verdict.  See  cases  cited  in  preced- 
ing note. 

(h)  But  see  the  citation  from  Co.  Litt.,  supra,  p.  22,  as  to  deeds. 

(c)  Taylor  v.  Dobbins,  I  Stra.  399 :  Elliot  i'.  Cooper,  2  Ld.  Raym.  1376. 

{d)  We  shall  state  these  cases  fully  when  we  come  to  consider  the  essential  requi 
sites  of  negotiable  promissory  notes,  in  our  third  chapter. 

/e)  Woodfolk  v.  Leslie,  2  Nott  &  McC.  585. 


M  NOTES    AND    BILLS.  [CH.  IL 

an  instrument  acknowledges  in  it  that  a  certain  sum  of  money 
"  is  due  to  A,  payable  on  demand  "  ;  (/)  or  that  a  certain  sum  of 
money  is  borrowed  on  the  promise  of  payment  thereof ;  (^'•)  or 
that  a  certain  sum  was  received  of  A,  to  be  repaid  on  demand 
with  interest ;  (h)  or  to  be  repaid  in  one  month  ;  {i)  or  stating  a 
balance  due,  for  which  "  I  am  still  indebted,  and  do  promise  to 
pay"  ;  (j)  we  have  authority  for  calling  all  of  these  instruments 
promissory  notes.  In  one  case,  a  promise  "  to  pay  or  cause 
to  be  paid"  was  held  to  be  sufficient. (^•) 

It  is  settled  that  a  note  need  not  contain  the  words  "  promise 
to  pay,"  if  there  are  other  words  of  equivalent  import.  Tliere- 
fore,  where  the  defendant  made  a  note  by  which  he  promised 
"  to  be  accountable  to  A  or  order  for  £  100,  value  received," 
this  was  held  a  good  note  within  the  statute. (/)  So  where  the 
defendant  gave  a  note  by  which  he  acknowledged  himself  "  to 

be  indebted  to  A  in  <£ ,  to  be  paid  on  demand,  for  value 

received,"  this  was  held  to  be  within  the  statute,  the  words 
"  to  be  paid  "  amounting  to  a  promise  to  pay.(w/)  So  a  direction 
to  A  to  "  credit  B  or  his  order  in  cash  "  in  a  certain  sum,  has 
been  licld  to  be  a  bill  of  exchange  ;  the  court  saying  "  '  credit 
in  cash '  is  equivalent  to  '  pay.'  "  (n) 

A  mere  acknowledgment  of  a  debt  is  held  in  England  to  be 
no  promissory  note  ;   the  common   illustration  of  which  is  the 


(/)   Pi'poon  V.  Stafrg,  1  Nott  &  McC.  U)2  ;   KimbiiU  v.  Huntington,  10  Wend.  G75. 

((/)  Ellis  V.  Mason,  7  Doul.  P.  C.  598. 

(/()   Green  v.  Davics,  4  B.  &  C.  23.i. 

(/)   Sliriveil  V.  Payne,  8  Dowl.  P.  C.  441. 

(  /)   Cliadwifk  r.  Allen,  2  Stra.  705. 

(il)   Lovell  V.  Hill,  6  C.  &  P.  238. 

,,?)  Morris  v.  Lee,  2  Ld  Raym.  1396.  The  court  said:  "By  the  receiving  Jie  value, 
the  defendant  became  a  dci)tor  ;  and  wlien  lie  promises  to  be  acconntahlc  for  it  to  A,  it 
is  the  same  thing  as  a  promise  to  pay  to  A.  And  it  is  the  stronger,  becanse  it  is  to  bo 
accountable  to  A  or  order,  which  is  the  proper  expression  used  in  such  unites,  and 
mentioned  in  the  act  of  Parliament,  where  it  is  intended  the  note  should  he  indorsaltlo 
or  negotiable  But  it  would  be  an  odd  construction  to  expound  the  wor<l  arrountable, 
to  give  an  account,  when  there  may  be  several  indorsees."  See  Home  v.  Bedfearn,  4 
Bing.  N.  C.  433  ;  White  v.  North.  3  Kxch.  689  ;  Shiivell  v.  Payne,  8  Dowl.  P.  C.  441 ; 
Hitchcock  V.  Cloutier,  7  Vt.  22 ;  Woodfolk  v.  Leslie,  2  Nott  &  McO.  585. 

(hi)   Casbornc  i'.  Dutton,  Selw.  N.  P.  (1 1th  ed.),  401. 

(;<)  ICllison  r.  CoIIingridgc,  9  C.  B.  570  ;  Allen  v.  Sea,  Fire,  &  Life  Ass.  Co.,  9  C.  B. 
574.  But  in  Woolley  v  Sergeant,  3  Halst.  262,  it  was  held,  that  an  order  in  writing, 
directed  to  C,  and  requesting  liim  to  credit  B  or  bearer  thirty  dollars,  was  not  a  bUI 
of  exchange. 


CII.  n.]  FORM    OF   PROMISSORY   NOTES.  25 

"  I.  0.  U.  X  200."  (o)  We  should  suppose  that  there  could  be  no 
doubt  of  the  correctness  of  this,  on  principle.  Such  an  instru 
ment,  or  any  other  form  of  a  mere  due  bill  without  a  promise, 
would  be  evidence  in  an  action  of  assumpsit  suited  to  the  case, 
but  could  not,  we  think,  be  declared  upon  as  a  promissory  note, 
nor  be  held  entitled  to  any  of  the  peculiar  privileges  of  these 
instruments.  Both  from  its  name  and  its  nature,  we  should 
have  said  that  the  note  must  contain,  and  must  express,  the 
promise  of  the  debtor  to  pay  the  money ;  and  it  is  going-  quite 
far  enough  to  say  that  the  word  "  promise  "  need  not  be  used  if 
there  are  other  words  of  equivalent  force  and  similar  meaning, 
the  fair  construction  of  whicli  would  make  them  one  form  of  a 
promise.  Several  American  cases,  however,  hold  any  due  bill 
to  bo  a  promissory  note.{p)  In  England  the  question  is  more 
im[)ortaut  than  here,  for  if  an  instrument  be  a  promissory  note 
and  have  no  stamp,  it  has  there  no  validity  whatever,  while 
here  it  will  be  valid  and  available  either  as  a  note  or  as  evidence 
of  a  debt ;  and  as  the  ditfcrence  becomes  in  this  way,  in  many 
cases,  more  a  matter  of  form  with  us  than  substance,  this  may 
be  a  reason  why  our  courts  construe  writings  of  this  kind  with 
more  laxity.  But  if  the  question  arose  on  a  negotiable  instru- 
ment, and  related  to  rights  or  obligations  springing  from  in- 
dorsement, and  which  exist  only  in  relation  to  this  peculiar 
instrument,  it  might  be  supposed  that  our  courts  would  be 
more  cautious.  If  the  word  "  payable  "  be  inserted,  it  makes 
a  promissory  note  in  England  and  in  this  country  ;  (q)  and  if  the 


(o)  Fisher  v.  Leslie,  1  Esp.  426  ;  Melanotte  v.  Teasilalo,  13  M.  &  W.  216  ;  Israel  v. 
Israel,  1  Camp.  499  ;  Chiklers  v.  Bouliiois,  Dowl  &  K.  N.  P.  8.  In  Guy  v.  Harris, 
Oliitty  on  Bills  (9th  cd  ),  526,  Lord  Eldon  is  said  to  have  ruled  that  such  an  instru- 
ment was  a  promissory  note,  though  not  negotiable.  "  But  it  clearly  is  not  such  at 
this  day,"  says  Mr.  Byles,  citing  Tomkins  v.  Ashby,  6  B.  &  C.  541,  9  D.  &  R.  543, 
Moody  &  M.  32.     Byles  on  Bills  (6th  ed.),  10. 

( p)  Cummings  v.  Freeman,  2  Humph.  143  :  Russell  v.  Whipple,  2  Cowcn,  536 ;  Mar- 
rigan  v.  Page,  4  Humph.  247  ;  HaiTow  v.  Dugan,  6  Dana,  341 ;  Fleming  v.  Burge,  6 
Ala.  373  ;  Finney  v.  Shirley,  7  Misso.  42  ;  McGowen  v.  West,  7  Misso.  569  ;  Kimball 
V.  Huntington,  10  Wend.  675;  Johnson  v.  Johnson,  Minor,  263;  Lowe  r.  Murphy, 
9  Ga.  338  ;  Brewer  v.  Brewer,  7  Ga.  584.  Sec  contra,  Read  v.  Wheeler,  2  Yerg.  50 
In  Franklin  v.  March,  6  N.  H.  364,  it  was  held,  that  an  instrument  in  these  words, 
"  Good  to  R   C  or  order  for  thirty  dollars,  borrowed  money,"  was  a  promissory  note. 

(q)  Pepoon  V.  Stagg,  1  Nott  &  McC.  102 ;  Mitchell  v.  Rome  R.  R.  Co.,  1 7  Ga.  574 ; 
Kimball  v.  Huntington,  10  Wend.  675;  Waithman  v.  Filsec,  1  Car.  &  K.  35  ;  Cas- 
borne  v.  Diu.'un,  Selw.  N.  P.  (1 1th  ed.),  401.    And  see  Brooks  v.  Elkins,  2  I\i.  &  W.  74. 

A'OL.   I  3 


2b  NOTES   AND    BILLS.  .  [CH.  LL 

due  bill  be  payable  to  "  A  or  order,"  or  to  him  "  or  bearer,"  it 
is  a  negotiable  promissory  note.  If  the  principal  purpose  and 
effect  of  the  writing  are  to  set  forth  an  agreement  or  bargain 
of  sale,  and  the  terms  be  stated,  although  the  buyer  expressly 
promise  therein  to  pay  at  a  time  certain  the  amount  agreed  on, 
this  is  still  only  an  agreement,  and  not  a  promissory  note.(r) 

An  instrument  under  seal,  though  iu  all  other  respects  in  the 
form  of  a  promissory  note,  is,  according  to  the  best  authorities, 
not  negotiable,  and  possesses  none  of  the  qualities  of  negotiable 
paper.  (5) 

There  has  recently  been  considerable  discussion  as  to  the  na- 
ture of  the  instrument,  in  common  use  among  bankers,  called  a 
certificate  of  deposit.  It  is  usually  in  this  form  :  "  I  hereby  cer- 
tify that  Mr.  A  has  deposited  in Bank  one  thousand  dollars, 

payable  twelve  months  from  date,  to  his  order,  upon  the  return 
of  this  certificate.  (Signed)  B,  Cashier."  We  think  this  in- 
strument possesses  all  the  requisites  of  a  negotiable  promissory 
note  ;  and  that  seems  to  be  the  prevailing  opinion. (^) 

The  anomalous  case,  in  which  a  promise  7iever  to  pay  was  held 
to  be  a  promise  to  pay,  (w)  cannot  be  considered  as  exhibiting 
another  form  in  which  a  valid  note  may  be  made,  but  only  as  an 
instance  of  the  court's  disregard  and  rejection  of  a  word  Avhich 
must  have  been  inserted  merely  by  mistake,  or  else  with  a  fraud- 
ulent purpose. 

It  is  usual  to  write  the  sum  in  words  in  the  body  of  the  note, 

(r)  Ellis  V.  Ellis,  Gow,  216.  Tiic  question  in  this  case,  however,  arose  ujion  the 
Stamp  Act. 

(s)  Clark  v.  Farmers'  Manuf.  Co.,  15  Wend.  256  ;  Frcvall  v.  Fitch,  5  Whart.  325  ; 
Hopkins  v.  Railroad  Co.,  3  Watts  &  S.  410 ;  Force  i\  Crai<,',  2  Ilalst.  272  ;  I'arkcr  v. 
Kennedy,  1  Bay,  398  ;  Parks  v.  Duke,  2  McCord,  380  ;  Tucker  v.  En>,^lisli.  2  Speers, 
673  ;  Lewis  v.  Wilson,  5  Blaekf.  369  ;  Sayre  v.  Lucas,  2  Stew.  259.  But  see,  contra, 
Porter?'.  McCollum,  15  Ga.  528. 

(t)  Miller  V.  Austen,  13  How.  218;  Lau;,'hlin  v.  Marsliall,  19  111  390;  Carey  v. 
McDoujruld,  7  Ga.  84;  Kilgorc  i-.  Bulklcy,  14  Conn.  362  ;  Bank  of  Orleans  r.  Merrill, 
2  Hill,  295  ;  Wclton  v.  Adams,  4  Calif.  37  ;  Johnson  v.  Barney,  1  Iowa,  531.  But  .see, 
contra,  Patterson  v.  Poindcxter,  6  Watts  &  S.  227  ;  Charnley  v.  Dulles,  8  Watts  &  S. 
353,  361.     And  sec  Sibree  v.  Tripp,  15  M.  &  W.  23. 

(u)  Anon.,  cited  in  2  Atk.  32.  This  case  is  stated  by  Lord  /lardwirke,  and  said  to 
have  been  ruled  by  Lord  Mucdesjidd  on  the  Northern  Circuit.  In  the  commencement 
of  the  note,  the  consideration  wiis  said  to  be  "  20/.  borrowed  and  i-eccived,"  and  at  the 
end  were  the  words,  "  which  I  promise  never  to  pay."  It  was  held  that  there  was  a 
good  fijundation  for  an  assumpsit,  upon  the  lending  on  one  side  and  tlie  borrowing  on 
the  other,  and  that  the  words  in  the  conclusion  of  the  note  would  make  no  vaWation. 


CH.  n.]  FORM  OF  PROMISSORY  NOTES.  27 

and  also  to  put  it  in  figures  at  the  corner.  If  tliey  differ,  the 
question  may  be  whether  it  is  an  ambiguity,  and  then  wliether 
it  is  fatal  to  the  note,  or  may  be  cured  by  evidence,  or  whether 
it  is  no  ambiguity  because  the  written  words  prevail  over  the 
figures.  So  far  as  we  have  authority,  the  last  would  be  tlie  rule  ; 
in  the  English  case  in  which  it  was,  with  some  difficulty,  so  de- 
termined, the  figures  were  for  a  larger  sum,  and  the  stamp  was  ap- 
plicable to  that  sum.(i')     In  this  country,  where  the  figures  could 


(v)  Saunderson  v.  Piper,  5  Bing.  N.  C.  425.  This  was  an  action  on  a  bill  of  ex- 
change, by  indorsees  against  acceptors.  The  bill  was  expressed  in  figures  to  be  drawn 
for  £245;  in  words,  lor  two  hundred  pounds,  with  a  stamp  applicable  to  the  higher 
amount:  IMd,  that  evidence  to  show  that  the  words  "  and  fort  ij-Jive"  liad  been  omitted 
by  mistake  was  not  admissible,  but  that  the  acceptance  must  be  taken  to  be  for  £  200 
only.  Tindal,  C.  J.  said  :  "  This  is  a  case  of  ambi(juitus  patens,  and,  according  to  the 
rules  of  law,  evidence  to  explain  such  an  ambiguity  is  not  admissible.  Where  there 
is  a  doubt  on  the  face  of  the  instrument,  the  law  admits  no  extrinsic  evidence  to  ex- 
plain it.  Now,  on  the  body  of  the  bill  in  question,  it  appears  to  have  been  drawn  for 
two  hundred  pounds  ;  but  in  the  margin,  the  figures  express  the  sum  of  £  245.    If  this 

creates  any  ambiguity,  it  is  one  which  arises  on  the  face  of  the  instrument The 

evidence  in  question  not  being  admissible,  we  cannot  shake  the  rule  of  commercial 
writers,  that,  where  a  difference  appears  between  the  figures  and  the  words  of  the  bill^ 
it  is  safer  to  attend  to  the  words.  If  we  take  the  authority  of  those  writers  where  we 
have  none  of  our  own,  this  is  a  good  bill  for  the  sum  expressed  in  the  body,  and  there- 
fore I  am  of  opinion  that  the  plaintiff  is  entitled  to  judgment  for  £200."  Bosanqnet, 
J. :  "  The  question  is,  whetiier  this  instrument  is  a  bill  for  £  245,  or  £  200,  or  whether 

it  is  altogether  void It  is  true  that  there  was  abundant  evidence  to  show  that  this 

was  intended  as  a  bill  for  £  245,  if  tliat  evidence  was  admissible ;  but  the  evidence  wa3 
not  admissible,  because  this  is  a  case  of  patent  ambiguity,  and  our  rules  of  evidence 
exclude  explanation  where  the  ambiguity  is  patent.  It  is  true,  some  foreign  writers 
have  said  that  in  such  a  case  the  drawee  should  wait  for  instructions  ;  and  it  would,  no 
doubt,  be  prudent  he  should  do  so  ;  that,  however,  cannot  alter  our  rules  of  evidence. 
But  the  same  writers  also  lay  it  down,  that  in  the  Absence  of  instructions  the  words  at 
length,  and  not  the  figures,  arc  to  determine  the  sum  to  be  paid  ;  and  we  think  that  \a 
the  rule  tliat  should  be  followed.  The  argument  that  pressed  me  most  is  the  rule  of 
fortius  contra  proferentem ;  that  an  instrument  must  be  taken  most  strongly  against  tha 
party  making  it.  But  there  is  no  case  in  which  that  principle  lias  been  applied  to  an 
instrument,  the  body  of  which  expresses  a  clear  amount,  and  the  ambiguity  arises  from 
a  different  amount  expressed  in  the  margin.  Under  such  circumstances,  the  rule  of  law 
as  to  evidence  must  prevail."  Coltman,  J.  was  of  opinion,  that  the  rule,  fortius  contra 
proferentem,  should  prevail,  and  the  bill  be  taken  to  be  for  £  245.  The  commercial 
writers,  alluded  to  in  the  above  opinions,  are  Marius  and  his  followers.  In  Marius,  p. 
S3  (4th  cd),  the  rule  is  thus  stated  :  "A  bill  of  exchange,  though  written  in  few  words, 
and  contained  in  a  small  piece  of  paper,  yet  is  of  great  weight  and  concernment  in 
point  of  trade  between  merchant  and  merchant,  and  therefore  ought  to  be  written  very 
plain  and  legible,  and  without  any  blots,  or  mending,  or  altering  of  any  word  thereof, 
thj.t  so  there  may  not  arise  any  doubt  or  scruple  in  the  payment  thereof;  and  there- 
fore it  is  that  usually  merchants  do  write  the  sum  that  is  to  be  paid  as  well  in  figures 
as  in  wo!ds  at  length,  as  you  may  observe  by  the  several  forms  of  bills  of  exchange 


28  NOTES   AND    BILLS.  [CH.  U. 

not  be  aided  in  that  way,  it  slionld  be  held  with  still  stronger  rea- 
son, that  the  words  control  the  figures,  (i^)  If  the  words  are  writ- 
ten in  the  body  of  the  note  so  obscurely  that  their  meaning  is 
doubtful,  the  figures  in  the  margin  may  be  referred  to  as  explan- 
atory of  the  intention  of  the  parties,  (.-r)  If  the  printed  words 
differ  from  the  written  words,  then  the  latter  will  control,  on  the 
ground  that  the  printed  words  were  intended  to  apply  to  many 
cases,  printed  forms  of  instruments  being  always  employed  for 
classes  and  quantities  only,  and  not  for  a  single  case,  and  the 
blank  left  to  be  filled  in  writing  was  left  for  the  very  purpose 
that  the  instrument  might  be  especially  adapted  to  each  particu- 
lar case.(//)     It  has  been  held  that  the  sum  may  be  in  figures  only, 


contained  in  this  treatise  ;  and  if  it  so  fall  out,  that  tiirough  unadvisedncss,  or  error  of 
the  pen,  the  figures  of  the  sum,  and  the  words  at  length  of  the  sum,  that  is  to  be  paid 
upon  any  bill  of  exciiange,  do  not  agree  together,  either  that  the  figures  do  mention 
more,  and  the  words  less,  or  that  the  figures  do  specify  less,  and  the  words  at  length 
more,  in  either,  or  in  any  such  like  case,  you  ought  to  observe  and  follow  tiie  order  of 
the  words  mentioned  at  length,  and  not  in  figures,  until  further  order  be  had  concern- 
ing the  same,  because  a  man  is  more  apt  to  commit  an  en-or  with  his  pen  in  writing  a 
figure  than  he  is  in  writing  of  a  word  ;  and  also,  because  the  figures  at  the  top  of  the 
bill  do  only,  as  it  were,  serve  as  the  contents  of  the  bill,  and  a  brcviat  tliereof,  but  the 
words  at  length  are  in  the  body  of  the  bill  of  exchange,  and  are  the  chief  and  principal 
substance  thereof,  whereunto  special  regard  ought  to  be  had  ;  and,  although  it  may  so 
fall  out,  that  tlie  sum  mentioned  in  figures  in  the  letter  of  advice  and  the  sum  men- 
tioned in  figures  in  the  bill  of  exchange  do  agree,  yet  if  the  sum  mentioned  in  words 
at  length  in  tlie  same  bill  do  disagree,  you  ought  to  follow  the  order  mentioned  in  words 
at  length  in  the  bill,  and  not  the  order  in  figures,  for  the  reasons  before  alleged." 

(«;)  Payne  v.  Clark,  19  Misso.  152  ;  Mcars  v.  Graham,  8  Blackf.  144.  In  Smith  v. 
Smith,  1  K.  I.  398,  it  was  held,  that  the  figures  in  the  margin  of  a  bill  of  exchange  are 
merely  a  memorandum  for  convenience  of  reference,  and  form  no  part  of  tlie  bill,  and 
an  alteration  in  them,  without  the  consent  of  the  drawer,  making  tlieni  conform  with 
the  body  of  the  instrument,  does  not  vitiate  the  bill ;  and  where  the  marginal  figures 
differ  from  the  body  c'  the  I)ill,  evidence  is  not  admissible  to  sjhow  that  the  l)ill  was 
negotiated  for  the  value  expressed  by  the  marginal  figiu-es,  and  not  for  the  value  ex- 
pressed in  the  body  of  the  bill.  In  Burnham  v.  Allen,  "  Gray,  496,  it  was  field,  that  a 
promissory  note,  expressed  to  be  for  "  thee  hundred  dollars,"  and  in  figures  in  the 
margin  "$.300,"  was  a  good  note  for  three  hundred  dollars,  if  the  maker,  when  he 
signed  it,  intended  "  thee  "  for  three  ;  and  whether  such  was  his  intention  was  a  ques- 
tion for  the  jury.     In  Norwich  Bank  v.  Hyde,  13  Conn.  279,  where  a  writing  was 

given,  in  the  form  of  a  note,  promising  to  pay dollars,  in  the  margin  of  which 

was  written  S  200,  it  was  held,  in  an  action  against  the  indorser  alleging  a  promise  to 
pay  two  hundred  dollars,  ihat  such  writing  was  not  admissible  in  support  of  the  dec- 
laration ;  the  ofiicc  of  the  memorandum  in  the  margin  being  to  remove  an  ambiguity 
in  the  Ixxly  of  the  instrument,  and  not  to  snp])ly  a  blank. 

(t)   lliley  V.  Dickens,  19  111.  29. 

(j/)   Sec  2  Parsons  on  Cont.,  pp.  28,  29. 


CH.  II.J  FORM  OF  PKOMISSORY  NOTES.  29 

and  not  in  words.  If  so,  this  would  certainly  be  one  of  those 
irregularities  which  would  subject  the  instrument  to  suspicion. (z) 

In  Louisiana,  by  statute,  no  bill,  note,  or  other  ol)ligation  for 
the  payment  of  money,  made  within  the  State,  is  admissible  as 
evidence  of  a  debt  when  the  whole  sum  is  expressed  in  figures, 
unless  accompanied  by  proof  that  it  was  given  for  the  sum  so 
expressed. («)  If,  in  a  bill  or  note,  the  word  "  dollars  "  is  omit- 
ted, or  in  England  the  word  "  pounds,"  these  words  will  never- 
theless be  supplied. (6) 

The  question,  whether  a  certain  instrument  is  a  promissory 
note  or  a  bill  of  exchange,  or  either,  at  the  election  of  the  holder, 
will  be  considered  hereafter,  when  we  come  to  speak  of  bills  of 
exchange,  (c") 


(z)  Nugent  v.  Roland,  12  Mart.  La.  659;  Pilie  v.  MoIIcrc,  14  Mart.  La.  666.  This 
point  was  raised,  but  not  decided,  in  Gibson  v.  Irby,  17  Texas,  173. 

(a)  Rev.  Stat.  La  ,  18.56,  p.  43.    But  fractional  parts  of  a  dollar  may  be  in  figures.    Id. 

(6)  Thus,  In  rhipps  v.  Tanner,  5  C.  &P.  488,  it  was  held,  that  a  bill  of  exchange  for 
twenty-Jive,  seventeen  shillings  and  three  pence,  was  a  bill  of  exchange  for  twenty-five 
pounds,  seventeen  shillings,  and  three  pence,  and  might  be  declared  on  as  sueh  ;  Tin- 
dal,  C.J.  saying:  "It  must  mean  pounds,  and  cannot  mean  anything  else."  So  in 
Booth  V  "Wallace,  2  Root,  247,  it  was  held,  that  in  a  note  for  "  thirty-two,  twelve  shil- 
lings, and  five  pence  lawful  money,"  the  word  pounds  is  necessarily  implied.  So  in 
Northrop  r.  Sanborn,  22  Vt.  433,  it  was  held,  that  an  order  drawn  for  "  37,89  "  was  not 
void  as  being  unintelligible  ;  but  the  court  would  intend  that  the  figures  were  used,  as 
whole  numbers  and  decimals,  to  express  the  currency  of  the  United  States.  And  see 
Murrill  v.  Handy,  17  Misso.  406;  Sweetser  v.  French,  13  Met.  262;  Rex  r.  Elliot, 
1  Leach,  C.  C.  175;  M'Coy  v.  Gilmore,  7  Ohio,  268;  Coolbroth  v  Purinton,  29 
Maine,  469. 

(c)  Sec  Edis  v.  Bury,  6  B.  &  C  433. 


»• 


30  NOTES  AND  BILLS.  [CH.  m. 


CHAPTER    III. 

OF  THE  ESSENTIAL  ELEMENTS  OF  A  NEGOTIABLE  PROMISSORY 

NOTE. 

To  learn  what  qualities  are  essential  to  a  negotiable  promis- 
sory note,  we  must  bear  in  mind  the  purpose  of  the  note,  and  of 
the  law  in  relation  to  it.  This  is  simply  that  the  note  may 
represent  money,  and  do  all  the  work  of  money  in  business 
transactions.  For  this  purpose,  the  first  requisite,  that,  indeed, 
which  includes  all  the  rest,  is  certainty.  This  means  certainty, 
first,  as  to  the  persons  who  shall  receive  the  money  by  which  the 
note  is  to  be  paid  and  replaced  when  this  representation  ceases. 
Second,  as  to  the  person  or  persons  who  are  to  make  this  pay- 
ment, and  the  order  and  conditions  of  their  liability.  Third,  as 
to  the  amount  to  be  paid.  Fourth,  as  to  the  time  when  the 
payment  is  to  be  made.  Fifth,  as  to  the  fact  itself  of  the  pay- 
ment. It  will  be  seen  that  the  law  endeavors  to  enforce,  define, 
and  protect  all  of  these  certainties  as  far  as  possible.  Not, 
however,  in  such  an  exact  and  technical  way  as  would  only 
embarrass  the  transaction  of  business  ;  but  substantially,  and 
in  a  perfectly  practical  way. 


SECTION    I. 

OF  CERTAINTY  AS  TO  THE  PAYEE. 

As  to  the  person  who  is  to  receive  the  money,  this  may  be 
either  the  original  payee,  or  one  who  is  made  a  subsequent 
payee  by  indorsement ;  of  this  indorsee  wo  will  treat  subse- 
quently, and  now  only  of  tlic  original  payee.  This  may  be  some 
one  or  more  persons  named,  or  the  note  may  be  made  payable 
to  bearer,  and  tlicn  the  ])ayce  will  be  any  person  who  comes 
into  lawful  possession  of  the  note  and  presents  it  for  payment. 
Such  a  note  is  ncgotial)le,  because  it  is  transferable  by  delivery, 


CH   III.]  CERTAINTY   AS   TO   THE   PAYEE.  31 

and  the  holder  may  sue  on  it  in  his  own  name ;  but  it  is  not 
strictly  negotiable  in  the  full  sense  of  the  word,  because  it  is 
scarcely  capable  of  regular  indorsement,  and  that  part  of  the 
law  of  these  instruments  which  relates  to  indorsement  applies  to 
it  very  imperfectly.  If  it  be  written,  "  Due  the  bearer,"  (a  cer- 
tain sum,)  "  which  I  promise  to  pay  A  or  order,"  this  is  payable, 
not  to  bearer,  but  only  to  A  or  his  order. (d) 

If  the  note  be  not  payable  to  bearer,  but  to  a  specific  payee, 
the  payee  must  be  distinctly  pointed  out ;  though  he  need  not  be 
expressly  named  as  such.  Indeed,  the  payee  is  made  the  prom- 
isee by  construction  of  law  only,  in  most  cases.  To  make  him 
so,  formally,  the  note  should  run,  "  I  promise  A  to  pay  him  or 
order"  ;  and  notes  are  sometimes  so  written,  and  always  so  de- 
scribed, when  set  forth  in  a  declaration  ;  but  far  more  frequently 
they  are  written,  "  I  promise  to  pay  A  or  order,"  and  the  law 
construes  this  to  mean  that  the  promise  was  made  to  A.  By  an 
extension  of  the  same  principle  of  construction,  where  a  receipt 
for  money,  by  reason  of  a  promise  of  repayment,  is  held  to  be  a 
promissory  note,  as,  "  Received  of  A  one  hundred  dollars,  which  I 
promise  to  pay  on  demand,"(e)  the  law  construes  the  promise  as 
made  to  A,  and  as  being  a  promise  to  pay  him  ;  thus  making  him 
both  promisee  and  payee.  So  if  the  instrument,  though  not 
naming  any  certain  payee  on  its  face,  furnishes  the  means  by 
which  the  payee  can  be  certainly  ascertained,  it  is  sufficient.  Id 
certmn  est.,  quod  cerium  reddi  potest.  Therefore,  if  a  note  be 
made  payable  to  "  the  administrators  of  the  estate  of  A,"  it  will  be 
good.(/)     On  the  same  principle,  an  instrument  payable  "  to  the 


(d)  Cock  V.  rello\v.s,  1  Johns.  143.  The  words  of  the  note  were,  "  Due  llie  bearer 
hereof  £3,  18,  10,  which  I  promise  to  pay  to  Abraham  Thompson  or  order,  on  de- 
mand." And  the  court  said :  "  The  word  bearer  has  reference  to  Thompson  as  the 
payee,  and  as  the  promise  is  expressly  to  pay  to  him  or  order,  another  person  could 
not  maintain  an  action  on  the  note  without  his  indorsement." 

(e)  Green  v.  Davies,  4  B.  &  C.  235.  Bayley,  J.  said  :  "  No  particular  form  of  words 
is  necessary  to  constitute  a  note,  and  Cliadwick  v.  Allen,  2  Stra.  706,  is  in  point  to  show 
that  it  is  not  necessary  to  name  the  payee  more  explicitly  than  this  note  does  ;  the  sub- 
stance of  the  note  there  was,  '.£15,  5s.,  balance  due  to  Sir  Andrew  Chadwick,  I  am 
still  indebted,  and  do  promise  to  pay.'  Whom  he  was  to  pay  was  not  in  terms  stated, 
but  as  no  other  payee  was  named,  who,  but  Sir  A.  Chadwick,  could  be  the  object  of 
his  promise  ?  So  here,  as  the  money  was  received  from  Boaz,  he  alone  could  be  the 
person  to  whom  the  money  was  to  be  paid  back."  And  see  Ashby  v.  Ashby,  3  Moore 
&  P.  186. 

(/)  Adams  v.  King,  16  111.  169  ;  Moody  i-.  Threlkeld,  13  Ga.  55.    In  Bacon  v.  Fitch, 


32  NOTES   AND   BILLS.  [CH.  IH. 

trustees  acting  under  the  will  of  A,"  is  a  promissory  note.(^'-)  So 
a  plaintitf  suing  on  a  promissory  note  wliich  purports  to  be  paya- 
ble to  a  person  of  a  diiferent  name  may  show  by  parol  evidence 
that  he  was  the  person  intended. (/t)  And  it  has  been  held,  that 
if  a  bill  be  drawn  payable  to  a  fictitious  payee,  and  indorsed  in 
the  name  of  such  payee,  and  be  afterwards  accepted  with  a  knowl- 
edge that  the  payee  is  fictitious,  such  bill  may  be  treated,  in  the 
hands  of  a  bona  fide  holder,  as  a  bill  payable  to  bearer. (i)     And 

1  Root,  181,  a  note  payable  "  to  the  heirs  of  A,"  who  was  then  alive,  was  held  suffi 
cient. 

{(])  l^rcKcinson  v.  Harper,  2  Cromp.  &  M.  322. 

(/()  Willis  V  Barrett,  2  Stark.  29;  Hall  v.  Tufts,  18  Pick.  455  ;  Jacobs  v.  Benson 
39  Maine,  1.32. 

((■)  Minet  v.  Gibson,  3  T.  R.  481, 1  H.  Bl.  569  ;  Collis  v.  Emett,  1  H.  Bl.  312  ;  Vero 
I'.  Lewis,  3  T.  R.  182.  In  a  note  to  Bennett  v.  Farnell,  1  Camp.  130,  the  learned  re- 
porter has  given  the  following  account  of  these  cases  :  "  Almost  all  the  modern  cases 
upon  tills  question  arose  out  of  the  bankniptcy  of  Livesay  &  Co.  and  Gibson  &  Co., 
who  negotiated  l)ills  with  fictitious  names  upon  them  to  the  amount  of  nearly  a  million 
sterling  a  year.  The  first  case  was  Tatlock  r.  Harris,  3  T.  R.  174,  in  which  the  Court 
of  King's  Hcnch  held,  that  the  bona  fide  holder  for  a  valuable  consideration  of  a  bill 
drawn  payable  to  a  fictitious  person,  and  indorsed  in  that  name  by  the  drawer,  might 
recover  the  amount  of  it  in  an  action  against  the  acceptor,  for  money  paid  or  money 
had  and  received,  upon  the  idea  that  there  was  an  appropriation  of  so  much  money  to 
be  jiaid  to  the  person  who  should  become  the  holder  of  the  bill.  In  Vere  v.  Lewis,  3 
T.  R.  182,  decided  the  same  day,  the  court  held,  there  was  no  occasion  to  prove  that 
the  defendant  had  received  any  value  for  the  bill ;  as  the  mere  circumstance  of  his 
acceptance  was  sufficient  evidence  of  this  ;  and  three  of  the  judges  tliouglit  the  plain- 
tiff might  recover  on  a  count  which  stated  that  tlie  bill  was  drawn  jiayable  to  bearer. 
Minet  v.  Gibson,  3  T.  R.  481,  put  this  point  directly  in  issue,  and  tlie  unanimous 
opinion  of  the  court  was,  that,  where  the  circumstance  of  the  payee  being  a  fictitious 
person  is  known  to  the  acceptor,  the  bill  is  in  eft'ect  payable  to  bearer.  Soon  after,  the 
Court  of  Common  Pleas  laid  down  the  same  doctrine  in  Collis  v.  Emett,  1  H  Bl.  313. 
This  decision  was  acquiesced  in  ;  but  Minet  i'.  Gibson  was  carried  up  to  the  House  of 
Lords,  1  H.  Bl.  569.  The  opinions  of  the  judges  being  tlien  taken,  Efirc,  C.  B.  (p. 
598),  and  Ilfdtfi,  J.  (p.  619),  were  for  reversing  the  judgment  of  the  court  below,  and 
Lord  Tliurlow,  C.  coincided  with  them  (p.  625) ;  but  the  other  judges  thinking  otlier- 
wise,  judgment  was  affirmed.  2  Bro.  P.  C,  2d  cd.,  48.  The  last  case  upon  the  .•subject 
re])ortcd  is  Gibson  v.  Hunter,  2  II.  Bl.  187,  288,  which  came  before  the  House  of  Lords 
ujion  a  demurrer  to  evidence;  and  in  which  it  was  held,  tliat,  in  an  action  on  a  bill  of 
this  sort  against  the  acceptor  to  show  that  he  was  aware  of  the  payee  being  fictitious, 
cvi<lencc  is  admissible  of  the  circumstances  under  wliich  he  had  accepted  other  bills 
payable  to  fictitious  persons.  Vide  Tuft's  case,  Leacli,  Cro.  Law,  206."  It  may  bo 
added,  that  the  rule  established  by  these  cases  is  now  of  very  little  practical  value ; 
and  if  the  question  were  still  open,  its  correctness  might  be  gravely  doubted.  Sec  the 
dissenting  opinions  of  Eijre,  C.  J.  and  Ilcat/i,  J.  See  also  Bennett  v.  Farnell,  1  Camp. 
1.30,  ISOr.  But  see  Hunter  »;.  lilodget,  2  Yeatcs,  480 ;  Foster  v.  Shutluck,  2  N.  H. 
446  ;  Piefs  v.  Johnson,  3  Hill,  112  ;  Famsworth  v.  Drake,  11  Ind.  101  ;  in  wliich  the 
English  rule  was  adopted.     By  statute  in  New  York  promissory  notes  made  payaolc  to 


OH.  m.]  CEIMAINTY    AS    TO    THE    I'AYKE.  33 

when  a  note  was  made  payal)lo  to  the  order  of  a  real  person,  and 
his  indorscnKMit  was  forged,  it  was  held  that  the  maker  was 
estopped  from  tlenying  the  vali(Hty  of  the  note  in  the;  hands  of  a 
bona  fide  holder. (/)  So  the  name  of  the  payee  may  he  left  blank, 
and  this  will  authorize  any  bona  ftde  holder  to  insert  his  own 
namc.(/t)  I>ut,  with  these  exceptions,  the  rule  recjuiring  the  j)ayee 
to  be  distinctly  named  is  very  strictly  adhered  to.  It  is  expressly 
held,  that  if  no  one  be  designated  as  payee,  either  by  name  or 
as  bearer,  the  instrument  is  not  a  promissory  notc.(/)  And  if 
the  promise  is  in  the  alternative,  as  to  |)ay  A  or  B,  it  is  insuffi- 


the  order  of  the  maker  thereof,  or  to  the  order  of  a  fictitious  person  if  negotiated  by 
the  maker,  liavc  tlie  same  effect,  as  against  the  maker  and  all  persons  having  knowledgo 
of  the  facts,  as  if  payable  to  bearer.  Stevens  v.  Strang,  2  Sandf.  138.  In  Davega  v 
Moore,  3  McCord,  482,  it  was  held,  that  a  note  payable  "  to  order"  only,  without  men- 
tioning the  name  of  any  payee,  was  to  be  considered  as  payable  to  bearer  in  favor  of  a 
bona  Jiik  holder.  See  Ellis  v.  Wheeler,  3  Pick.  18  ;  Ball  v.  Allen,  1.5  Mass.  433.  In 
Willets  i\  Phoenix  Bank,  2  Duer,  121,  it  was  held,  that  a  bank-check,  payable  to  tho 
order  of  bills  payable,  as  it  could  not  jiass  by  indorsement,  was,  in  judgment  of  law, 
payable  to  bearer.  If  the  acceptor  of  a  bill  payable  to  a  fictitious  person  be  iynorant  of 
the  circumstance  that  the  payee  is  fictitious,  he  is  not  liable,  even  to  a  bona  fide  holder. 
Bennett  r.  Farnell,  1  Camp.  130,  180  c.  So  if  the  holder  received  the  bill  with  a 
hiowle(h/e  of  this  circumstance,  he  cannot  recover.  Hunter  v-  Jeffery,  Peake's  Add. 
Cas.  146. 

(,/)  Meacher  r.  Fort,  3  Hill,  S.  Car.  227. 

{k)  Attwood  V.  Griffin,  Ryan  &  M.  42.5 ;  Cruchley  i;.  Clarance,  2  Maule  &  S.  90 ; 
Crutchly  v.  Mann,  5  Taunt.  529  ;  Greenhow  v.  Boyle,  7  Blackf.  56.  But  until  the 
blank  is  filled  up,  the  instrument  is  invalid.    Seay  v.  Bank  of  Tennessee,  3  Sneed,  558. 

(I)  Thus,  in  Brown  v.  Gilman,  13  Mass.  1 58,  an  instrument  in  these  words,  "  Good  for 
one  hundred  and  twenty-six  dollars  on  demand,"  and  signed,  was  held  not  to  be  a  prom- 
issory note.  Sec  Curtis  v.  Rickards,  1  Man.  &  G.  4G.  And  in  Douglass  v.  Wilkeson,  6 
Wend  637,  it  was  held,  that  an  indorsement  on  a  note  in  these  words,  "  Mr  Olcott,  pay 
on  within  $750,"  was  not  a  bill  of  exchange,  draft,  or  check.  So  in  Gibson  ;;.  Minet, 
1  H.  Bl.  569,  608,  Eyre,  C.  J.  said  :  '•  If  I  put  in  writing  these  words,  '  I  promise  to  pay 
£  500  on  demand,  value  received,'  without  saying  to  whom,  it  is  waste  paper.  If  I 
direct  another  to  pay  ^500  at  some  day  after  date  for  value  received,  and  not  say  to 
whom,  it  is  waste  paper."  In  Mayo  v.  Chcnowetli,  Breese,  155,  the  instrument  was  in 
this  form  :  "  This  shall  oblige  me  to  pay  thirty-five  dollars  on  a  judgment  in  the  Inmds 
of  Lewis  Murphy,  Esq.,  against  Mark  A.  Sanders,  in  favor  of  John  Chenoweth,  with 
interest  from  this  date  till  paid."  (Signed,)  "Jonathan  Mayo  "  Held,  that  it  was  not 
a  promissory  note.  And  see  Matthews  v.  Redwine,  23  Missis.  233 ;  Enthoven  v.  Hoyle, 
13  C.  B.  373.  In  Prewitt  v.  Chapman,  6  Ala.  86,  it  was  held  that  an  instrument,  pur- 
porting to  be  a  bill  of  exchange,  but  which  did  not  direct  to  whom  the  money  was  pay- 
able, might  be  the  foundation  of  a  suit,  in  the  name  of  the  person  from  whom  the  con- 
sideration moved,  and  to  whom  it  was  delivered  by  the  drawer;  but  an  action  could  not 
be  maintained  thereon  by  a  third  person,  as  bearer.  In  United  States  v.  White,  2  Hill, 
:)9,  it  was  held,  that  a  promissory  note  made  payable  to  the  order  of  the  person  icho  should 
thereafter  indorse  the  same  was  valid  and  negotiable. 

Vol.  L— C 


34  NOTES    AND    BILLS.  [CH.  IE. 

cient. {in)  So  an  infetniment  payable  "to  the  estate  of  M.  L.,  de- 
ceased," is  not  a  promissory  note.(/i)  So  an  instrument  contain- 
ing a  promise  to  pay  a  certain  sum  therein  mentioned  '••  to  the 
secretary,  for  the  time  being,  of  the  Indian,  Sfc.  Assurance  Soci- 
ety, or  his  order,"  has  been  held  not  to  be  a  promissory  note.(o) 

(m)  Musselman  v.  Oakcs,  19  lU.  81  ;  Blanckenhagen  v.  Blundell,  2  B.  &  Aid.  417. 
This  was  an  action  on  a  note  whereby  the  maker  promised  to  pay  to  A  or  to  B  and 
C  a  sum  therein  specified,  value  received  ;  and  it  was  held  not  to  be  a  promissory  note 
within  the  meaning  of  the  statute  of  Anne.  Campbell,  arguendo^  said  :  "  This  is  a  valid 
note  within  the  statute  of  Anne,  as  between  the  original  parties,  althongli,  perhaps,  it 
may  not  be  negotiable.  It  is  not  payable  upon  a  contingency  ;  for  a  note  payable  to 
two  partners,  which  in  effect  is  payable  to  one  or  to  the  other,  is  equally  so.  So  also, 
foreign  bills  of  exchange,  drawn  in  sets,  may  equally  be  said  to  be  payable  upon  con- 
tingencies ;  for  the  direction  is  to  pay  this  my  first  bill  of  exchange,  the  second  and 
third  not  being  paid  ;  or  the  second,  the  first  and  third  not  being  paid ;  wliich  is  in  ef- 
fect directing  the  bill  to  be  paid  to  the  indorsee  who  may  hold  the  first,  or  to  the  in- 
dorsee who  may  hold  the  second."  But  Abbott,  C.  J.  said  :  "  I  have  no  doubt  that 
this  instrument,  In  the  form  in  which  it  is  declared  on,  is  not  a  promissory  note  within 
the  statute  of  Anne  ;  for  if  a  note  is  made  payable  to  one  or  other  of  two  persons,  it  is 
payable  to  either  of  them  only  on  the  contingency  of  its  not  having  been  paid  to  the 
otiicr,  and  is  not  a  good  promissory  note  within  the  statute."  Bdi/ley,  J.  :  "  If  there 
had  been  any  community  of  interests  stated  between  the  payees  so  as  in  any  respect  to 
identify  Darner  and  Blanckenhagen,  it  is  possible  that  an  action  might  have  been  main- 
tained on  this  note,  but  in  the  way  in  which  the  declaration  has  been  framed,  stating 
this  as  a  note  payable  to  one  or  the  other,  I  am  very  clearly  of  ojjinion  that  it  is  not  that 
descrijjtion  of  note  which  the  statute  of  Anne  contemplated."  Ilolroijd,  J. :  "  This  note 
docs  not  come  within  the  description  of  notes  contemplated  by  the  statute  of  Anne. 
It  is,  in  fact,  a  promise  to  pay  A,  if  the  maker  does  not  pay  to  B  and  C.  It  is  there- 
fore a  conditional  promise,  and,  consequently,  not  within  the  statute."  The  same 
point  was  decided  in  Walrad  v.  Petrie,  4  Wend.  575.  But  Mara/,  J.  there  said  :  "  On 
the  ])art  of  the  plaintiff  it  is  contended  that  the  contingency  is  no  greater  than  it  would 
be  if  the  word  '  and  '  was  substituted  for  '  or,'  because,  had  the  note  been  payable  to 
Walrad  and  Bowman,  payment  to  either  would  have  been  a  satisfaction  of  the  note ;  we 
are,  therefore,  asked  to  consider  the  word  'or'  of  the  same  effect  as  the  word  '  and.' 
I  should  be  inclined  to  accord  in  the  views  of  the  plaintiff,  if  I  were  not  reluctant  to  es- 
tablish a  different  rule  here  from  tliat  whidi  seems  to  i)rcvail  in  England  on  this  jioint. 
It  is  important  to  our  commercial  interests,  considering  the  intercourse  existing  between 
this  country  and  England,  that  the  statutes  wiiich  are  alike  in  both  countries  as  to  nego- 
tiable pa|)er  should  receive  the  same  construction,  and  be  applied  in  the  same  manner." 
See  Samuels  v.  Evans,  1  McLean,  47.3  ;  S])aulding  v.  Evans,  2  McLean,  139. 
(n)  Lyon  v.  Marshall,  11  Barb.  241  ;  Tittle  v.  Thomas,  30  Missis.  122. 
(o)  Storm  V.  Stirling,  3  Ellis  &  B.  832.  Lord  Cam}MI,  in  delivering  the  judgment 
of  the  court  in  this  case,  said:  "  The  nature  and  every  definition  which  we  find  in  the 
books  of  a  promissory  note  siiow  that  it  must  contain  an  ex])ress  promise  to  pay  to  a 
person  tlicntin  named  or  designated,  or  to  his  order,  or  to  bearer.  If  the  person  to 
whom  or  to  whose  order  it  is  to  be  paid  is  uncertain,  and  it  depends  on  a  contingency 
to  whom,  or  to  whose  order,  payment  is  to  be  made,  it  is  not  a  promissory  note,  unless 
it  ran  be  treated  ns  payaltle  to  bearer.  It  was  tnged,  on  behalf  of  the  ])iaintiff,  that  we 
might  treat  tliis  as  a  note  made  payable  to  the  plaintifi",  who  at  tiie  date  of  the  doca- 


CH.  ni.]  CERTAINTY   AS   TO   THE   PAYER.  35 

But  if  it  had  been  "  to  the  noiv  secretary  of  the  Indian,  Sfc. 
Assurance  Sodety,  or  his  order,"  it  would,  as  we  have  seen, 
have  been  sufficient.  (/?)  If  a  note  is  payable  to  A,  and  there 
are  two  persons  of  that  name,  father  and  son,  the  note  would 
be  prima  facie  evidence  of  a  promise  to  the  father.  But  the  son 
may  show  that  he  is  in  possession  of  the  note,  and  is  the  person 
who  authorized  the  bringing  of  the  action. ((?) 


SECTION    II. 

OF  CERTAINTY  AS  TO  THE  PAYER. 

Certainty  is  required  as  to  the  persons  who  are  to  make  the 
payment,  and  the  order  and  conditions  of  their  liability.  In  the 
first  place,  the  maker,  who  signs  the  note  and  is  the  promisor,  is 
bound  by  his  promise  to  pay  the  note.     This  signature  must  be 


ment  was  the  secretary  of  the  society,  by  his  description  as  such  secretary 

There  is  no  doubt,  upon  the  authorities,  that  it  is  quite  sufficient  to  make  a  note  by  a 
description  or  designatio  personcB  of  tliis  kind  ;  but  we  do  not  think  that  we  can  put  the 
above  construction  on  the  document  now  before  us.  The  use  of  the  words  '  for  the 
time  being,'  in  the  first  instance,  the  repetition  of  them  afterwards,  and  the  wliole  form 
and  scope  of  the  instrument,  satisfy  us  that  the  payment  was  to  be  made  to  the  indi- 
vidual who,  at  the  time  of  the  instrument  f;\lling  due.  should  fill  the  situation  of  secre- 
tary of  the  company,  and  not  to  the  plaintiff^,  unless  he  happened  to  be  the  secretary  at 
that  time.  It  was,  we  think,  clearly  intended  as  a  floating  promise,  the  performance  of 
which  was  to  be  made  to  the  person  being  secretary  when  the  document  became  due. 
The  other  construction  would  in  effect  be  to  hold  that  the  words  '  the  secretary  for  the 
lime  being '  meant  the  now  secretary ;  but  we  think  that  the  words  were  used  for  the 

very  purpose  of  excluding  that  construction It  was  suggested  also,  in  the 

argument,  that  if  there  were  no  payee  who  could  sue,  the  note  might  be  treated  as  pay- 
able to  bearer.  But  we  think  that  in  so  holding  we  should  give  a  meaning  to  the  note 
contrary  to  the  clearly  expressed  intention  of  the  maker.  This  is  not  a  case  of  fraud, 
or  of  a  fictitious  payee  ;  but  the  defect  is,  that  it  is  a  promise  to  pay  some  person  to  be 
ascertained  ex  post  facto ;  and  we  know  no  autliority  to  show  that  under  such  circum- 
stances we  can  hold  this  instrument  to  be  a  note  payable  to  bearer,  because,  though 
valid,  perhaps,  as  an  agreement,  it  cannot  be  enforced  as  a  promissory  note.  This 
promise  is  to  pay  to,  or  to  the  order  of,  an  uncertain  person.  But  if  founded  on  good 
consideration,  it  may  probably  give  rights,  legal  or  equitable,  to  the  society.  But  we 
think  that  we  should  be  making  a  new  instrument  if  we  were  to  hold  it  a  promissory 
note  payable  to  bearer ;  and  the  case  does  not  fall  within  any  of  the  decisions  cited  on 
this  branch  of  the  argument." 

(p)  Per  Lord  Campbell,  in  Storm  v.  Stirling,  supra.  And  see  Robertson  v.  Sheward, 
I  Man.  &  G.  511  ;  Davis  v.  Garr,  2  Scld.  124 ;  Rex  v.  Box,  6  Taunt.  325. 

(g)  Sweeting  v.  Fowler,  1  Stark.  106. 


36  NOTES   AND   BILLS.  [CH.  m. 

unambiguous  and  explicit,  so  as  to  leave  no  doubt  of  the  per- 
son intended  to  be  designated  ;  because  it  is  obvious  that  any 
doubt  on  this  subject  would  impair,  if  it  did  not  destroy,  the 
utility  of  the  document  as  an  instrument  of  business ;  (r)  and 
therefore  it  is,  that  we  doubt  whether  courts  should  permit  the 
signature  of  a  negotiable  note  to  be  made  merely  by  initials,  or 
to  be  inserted  in  the  body, (5)  or  at  the  beginning,  or  in  the  mar- 
gin of  the  note,  or  elsewhere  than  at  its  close,  which  is  the  usual 
and  proper  place. (^) 

The  signature  should  be  in  the  handwriting  of  the  maker,  un- 
less made  by  his  agent.  Then  this  agency  should  be  expressed ; 
and  the  proper  form  of  such  signature  is,  "A,  by  B  his  agent" 
or  "  attorney."  But  if  the  signature  were  "  B  for  A,"  this  inac- 
curacy of  form  would  not  make  it  B's  note,  or  prevent  it  from 
being  A's  note,  if  the  signature  were  actually  authorized,  and 
the  note  were  in  all  other  respects  regular.  (?<) 

As  a  note,  especially  a  promissory  negotiable  note,  is  not  strictly 
a  specialty,  although  formerly  it  was  so  regarded  in  one  or  two 
cases,  the  authority  to  make  or  sign  or  deliver  it  need  not  be  un- 
der seal,  nor  even  in  writing.  And  if  the  note  purports  to  be 
made  by  A  by  his  agent  B,  and  B  had  no  authority,  yet  if  A 
should  afterwards  adopt  and  ratify  this  signature,  it  would  be 
effectual.  If,  however,  only  B's  name  was  there,  and  there  was 
neither  expression  nor  intimation  of  agency,  then  the  established 
rule  that  there  can  be  no  ratification  of  an  act  by  an  undisclosed 
principal,  unless  the  act  itself  purported  to  be  the  act  of  an 
agent,  would  prevent  A  from  making  it  by  ratification  his  note. 
But  he  miglit,  undoubtedly,  guarantee  it,  or  become  surety  for 
the  payment,  or  assume  its  oljligations  in  any  other  way  he  saw 
fit  to  do.  In  other  words,  if  B  makes  the  note  as  his  own  note, 
it  can  never  become  the  note  of  any  other  maker ;  but  if  he 
makes  the  note  as  agent  of  A,  although  he  has  no  authority,  A 
can  make  the  note  his  own  by  ratification. 

If  the  signature  be  in  the  alternative,  as  if  the  note  be  signed 

(r)  In  Sanders  t;.  Anderson,  21  Misso.  402,  it  was  held,  that  a  note  signed  "  Steam- 
boat Ben  Lee  and  owners  "  was  sufficient. 

(.s)  See  supra,  p.  2.3,  note  c. 

(/)  It  has  been  held,  liowcver,  that  a  signature  by  initials  is  sufficient.  Merchants' 
Bank  v.  Spiccr,  G  Wend.  443  ;  Palmer  v.  Stephens,  1  Denio  471 

(u)  See  post,  ch.  5,  ^  4. 


I 


CH.  III.]  CERTAINTY   AS   TO   THE   AMOUNT.  37 

"  A  or  B,"  \VG  should  say  it  was  not  a  sufficient  signature  to  make 
a  good  promissory  note  against  any  person.  In  one  case,  a  note 
written,  "I,  A,  promise,"  <fec.,  signed,  "A  or  else  B,"  was  re- 
garded as  tlie  note  of  A,  signed  by  B  as  surety ;  probably  on 
account  of  its  peculiar  phraseology. (y) 

If  the  character  in  which  a  person  writes  his  name  on  a  bill  or 
note  is  obvious  and  certain,  it  does  not  seem  to  be  material  on 
what  part  of  the  paper  the  signature  is  written.  (i«7) 


SECTION    III. 

OF    CERTAINTY    AS    TO    THE    AMOUNT. 

There  should  be  entire  certainty  and  precision  as  to  the 
amount  to  be  paid.  The  reason  of  this  is  especially  obvious ; 
for  if  the  note  is  to  represent  money  effectually,  there  must  be 
no  chance  of  mistake  as  to  the  amount  of  money  of  which  it 
thus  takes  the  place  and  performs  the  office.  On  this  point, 
therefore,  the  cases  are  quite  stringent.  The  sum  must  be  stated 
definitely,  and  must  not  even  be  connected  with  any  indefinite  or 
uncertain  sum,  nor  are  we  aware  of  any  trustworthy  cases  in 
which  the  rule  Id  certum  est,  quod  certum  reddi  potest,  is  per- 
mitted to  supply  the  want  of  an  express  certainty  on  this  point, 
as  it  seems  to  be  in  relation  to  some  other  of  the  certainties  re- 
quired in  promissory  notes.  Thus,  if  the  promise  be  to  pay  a  cer- 
tain sum,  and  also  "  all  fines  according  to  rule,"(.x')  or  a  certain 


(y)  Ferris  v.  Bond,  4  B.  &  Aid.  679.  The  note  was  in  these  words  :  "  I,  John  Cor- 
ner, promise  to  pay,"  &c.  (Signed,)  "  John  Corner,  or  else  Henry  Bond."  The  action 
was  against  Bond  ;  and  the  court  said  :  "  This  is  not  a  promissory  note  by  this  defend- 
ant within  the  statute  of  Anne.  It  operates  differently  as  to  the  two  parties.  It  is  an 
absolute  undertaking  on  the  part  of  Corner  to  pay,  and  it  is  conditional  only  on  the  part 
of  the  defendant,  for  he  undertakes  to  pay  only  in  the  event  of  Corner's  not  paying." 

(«;)  Clason  v.  Bailey,  14  Johns.  484  ;  Hunt  v.  Adams,  5  Mass.  358 ;  Carver  c.  War- 
ren, id.  545 ;  Saunderson  v.  Jackson,  2  B.  &  P.  238  ;  Knight  v.  Crockford,  I  Esp.  190. 

{x)  Ayrcy  v.  Fearnsides,  4  M.  &  W.  168.  It  was  contended  for  the  plaintiff  in  this 
case,  that  the  words  "  and  all  fines  according  to  rule"  were  altogether  insensible,  and 
might  be  rejected  as  surplusage.  But  Parke,  B.  said  :  "  This  instrument  being  de- 
clared on  as  a  promissory  note,  the  question  is,  whether  the  words  'and  all  fines 
according  to  rule'  can  be  rejected  as  being  altogether  insensible,  and,  therefore,  mere 
surplusage  ;  and  I  think  they  cannot.  It  is  quite  possible  that  they  have  a  meaning, 
*nd  may  import  that  certain  pecuniary  fines  and  forfeitures  are  to  be  jiaid  by  the  defend- 

VOL.  I.  4 


38  NOTES   AND   BILLS.  ^  [CH.  IH. 

sum,  and  also  "  all  other  sums  which  may  be  due,"(y/)  or  a  cer- 
tain sum  with  interest,  and  also  to  pay  "  the  demands  of  the  sick 
club  at,  &c.,  in  part  of  interest,"(2)  or  a  certain  sum,  "  the  cur- 
rent rate  of  exchange  to  be  added," (a)  or  a  certain  sum,  de- 
ducting what  interest  or  money  "A  may  owe  the  maker,"(&)  or 
"  deducting  all  advances  and  expenses,"(c)  or  a  certain  sum, 
"the  same  to  go  as  a  set-off,"  &c.{d)  In  neither  of  these  cases 
can  the  instrument  be  considered  as  a  valid  promissory  note, 
even  for  the  specific  sum  which  the  maker  promises  to  pay. 

So  a  direction  to  pay  to  the  order  of  A  "  whatever  sum  you 
may  collect  for  me  of  C,"(e)  or  "the  proceeds  of  a  shipment  of 
goods,  value  about  £  2,000,  consigned  by  me  to  you,"  is  not  a 
bill  of  exchange. (/) 


SECTION    lY. 

OF    CERTAINTY    AS    TO    THE    TIME    OF    PAYMENT. 

The  time  when  the  money  is  to  be  paid  is  also  to  be  certain. 
Here,  however,  the  rule  that  what  can  be  made  certain  is  certain, 
is  permitted  to  operate.  Thus,  if  payable  on  demand,  no  one 
can  say  when  the  demand  will  be  made,  but  when  it  is  made  the 
note  becomes  at  once  certainly  due.  If  payable  "  when  demand- 
ed," this,  though  an  unusual  phrase,  means  the  same  thing ;  so 
that  the  statute  of  limitations  begins  with  such  a  note  on  the  day 
of  the  date. (if)  If  payable  "on  demand  with  interest  after  six 
months,"  this  is  held  to  mean  that  the  demand  may  be  immedi- 


ants  ;  and  if  so,  tliis  is  certainly  no  promissory  note  within  tlie  statute,  but  is  a  specific 
agreement  to  do  ot'rtain  things,  the  consideration  for  doing  which  not  being  stated,  tho 
declaration  is  clearly  bad." 

{y)  Smith  v.  Nightingale,  2  Stark.  375. 

(2)  Bolton  V.  Dugdalc,  4  B.  &  Ad.  CI 9.  And  see  Leeds  r.  Lancashire,  2  Camp. 
205  ;  Davies  v.  Wilkinson,  10  A.  &  E.  98. 

(a)  riiiladclphia  Bank  v.  Newkirk,  2  Miles,  442. 

(6)  Barlow  v.  Broadhurst,  4  J.  B.  Moore,  471.  Sec  Kalfus  r.  Watts,  Litt.  Sel  Cas. 
197. 

(r)  Cusliman  v.  Ilaynes,  20  Pick.  132. 

(d)  Clarke  v.  IVrcival,  2  B.  &  Ad.  660. 

(e)  Legro  v.  Stajilcs,  16  Maine,  252. 
(/)  Jones  V.  Siiiip>;i)n,  2  B.  &  C  318. 
(y)  Kingsbury  v.  Butler,  4  Vt.  458. 


CII.  III.]  CERTAINTY   AS   TO   THE    TIJIE    OF   PAYMENT.  39 

ate,  but  that  the  interest  will  not  begin  unless  the  note  lies  \m- 
paid  six  months,  and  not  that  the  demand  must  be  deferred  until 
after  six  months. (/<)  But  if  payable  with  interest  twelve  months 
after  notice,  this  means  payable  on  demand  at  any  time  after 
twelve  months  have  elapsed  from  the  notice,  and  is  sufficiently 
definite. (i)  And  in  one  case,  where  the  note  was  written  "  on  de- 
mand with  interest  after  four  months,"  and  the  words  "  on  de- 
mand "  had  been  partially  erased,  but  could  still  be  read,  it  was 
held  to  be  payable  in  four  months.(j)  If  payable  "when  I  shall 
marry,"  or  in  so  many  days  "  after  I  shall  marry,"  this  is  not  suf- 
ficiently certain,  because  the  promisor  may  never  marry  at  all.(/k:) 
So  if  payable  when  certain  property  or  goods  are  sold  ;  (/)  or  "  when 
my  circumstances  will  admit  without  detriment  to  myself  or  fam- 
ily" ;  (in)  or  "  thirty  days  after  the  arrival  of  a  certain  ship"  ;  (n) 
or  "when  in  funds,"(o)  it  is  not  sufficient.-  So  if  payable 
in  instalments,  no  time  being  stipulated  for  the  payment  of  the 
instalments,  it  is  not  a  promissory  note.(/>)  If  payable  "  when  A 
shall  come  of  age,"  this  alone  would  not  be  enough,  because  he 
might  die  a  minor  ;  (^7)  but  if,  in  addition  to  this,  the  day  is  speci- 
fied on  which  he  will  be  of  age,  this  is  held  to  be  good,  because 
the  note  will  be  payable  when  the  day  arrives,  though  A  should 
die  before  the  day.(r)     So  if  payable  within  a  limited  time  after  a 

(k)  Loring  v.  Gurncy,  5  Pick.  15. 

(i)  Clayton  v.  Goslinj?,  5  B.  &  C.  360. 

(  /)  Hobart  v.  Dodge,  1  Fairf.  156.  In  Conner  v.  Routh,  7  How.  Miss.  176,  it  was 
held,  that  a  note  payable  twcnty-foiir  after  date  was  not  void  for  uncertainty,  nor  a  noto 
on  demand;  hut  the  liohler  might  insert  the  time  intended. 

(/.)   Beardeslcy  f.  Baldwin,  2  Stra.  1151  ;  Pearson  v.  Garrett,  4  Mod.  242,  Comb.  227. 

(/)  Do  Forest  v.  Frary,  6  Cowen,  151 ;  Mill  ('.  Halford,  2  B.  &  P.  413.  But  see 
Ubsdell  v.  Cunningham,  22  Misso.  124. 

(m)  Km  parte  Tootcll,  4  Ves.  372  ;  Salinas  v.  Wrigbt,  H  Texas,  572. 

(h)  Palmer  v.  Pratt,  2  Bing.  185. 

(0)   Harrell  v.  Marston,  7  Bob.  La.  34 

{]))  Motfat  V.  Edwards,  Car.  &  M.  16. 

(q)  Thus,  in  Kolley  j;.  Hemmingway,  13  111.  604,  it  Avas  held,  that  a  note  pay.able  to 
a  person  "  when  he  is  twenty-one  years  old,"  is  not  a  promissory  note.  Treat,  C.  J. 
said  :  "  The  payment  was  to  he  made  when  the  payee  should  attain  his  majority,  — an 
event  that  might  or  might  not  take  place.  The  contingency  might  never  happen,  and, 
jlicrefore,  the  money  was  not  certainly  and  at  all  events  payable.  The  instrument 
lacked  one  of  the  essential  ingredients  of  a  promissory  note,  and  consequentlv  was  not 
negotiable  under  the  statute  The  fact  that  the  payee  lived  till  he  was  twenty -one 
years  of  age  makes  no  difference.  It  was  not  a  promissory  note  when  made,  and  it 
could  not  become  such  by  matter  ex  post  facto." 

(r)  Goss  V.  Nelson,  1  Burr.  226. 


40  NOTES   AND   BILLS.  [CH.  IH. 

mail's  death,  this  is  held  to  be  sufficient,  because  an  event  must  oc- 
cur which  will  make  this  definite  ;  (s)  and  if  the  day  of  payment 
must  come,  it  has  been  said  that  its  distance  is  not  material ;  {t) 
but  this  dictum  must  be  received  with  much  qualification.  It 
has  also  been  held,  but  as  we  think  on  insufficient  grounds,  that 
if  payable  a  definite  time  after  money  which  is  due  from  the 
government  shall  be  paid,  this  is  certain  enough,  because  it  is 
certain  tluit  the  government  or  nation  will  pay  their  debts. (/^)  It 
has  also  been  held,  where  a  negotiable  note  which  was  indorsed 
and  sued  by  the  indorsee  was  made  payable  "  by  the  20th  of 
May,  or  when  he  completes  the  building  according  to  contract," 
that  this  was  a  good  note,  because  "  payable  absolutely  at  a  day 
certain." (y)     The  reasons  for  this  decision  are  not  given,  and  it  is 

(s)  Cooke  V.  Colehan,  2  Stra.  1217,  Willes,  393. 

(t)  In  Colciian  v.  'Cookc,  Willes,  393,  396,  Willes,  C.  J.  said  :  "I  put  a  question  to 
the  counsel,  whether  there  is  any  limited  time  mentioned  in  any  of  the  hooks  beyond 
which  if  bills  of  exchange  are  made  payable  they  are  not  good,  and  it  was  agreed  by 
the  counsel  that  they  could  find  no  such  rule,  and  I  am  sure  I  can  find  none.  But  if  a 
bill  of  exchange  be  made  payable  at  never  so  distant  a  day,  if  it  be  a  day  that  must 
come,  it  is  no  objection  to  the  bill.  There  is  but  one  passage  in  the  books  wliercin  any 
notion  to  the  contrary  is  so  much  as  hinted  at ;  and  that  is  in  Scaccliius  de  Commerciis, 
where  it  is  said  that  it  had  been  formerly  an  objection  against  a  bill  of  exchange,  as 
contrary  to  the  nature  of  it,  that  it  was  made  payable  at  the  end  of  seven  months ;  but 
by  his  making  use  of  the  word  'formerly,'  it  is  jjlain  that  in  his  opinion  the  law  was 
then  held  to  be  otherwise." 

(«)  Andrews  v.  Franklin.  I  Stra.  24  ;  Evans  i;.  Underwood,  1  Wilson,  262. 

(y)  Stevens  v.  Blunt,  7  Mass.  240  So  in  Goodloe  v.  Taylor,  3  Hawks,  4.58,  where 
a  note  was  drawn  as  follows:  "'Against  the  2.')th  of  December,  1819,  or  when  the 
house  John  Mayfield  has  undertaken  to  build  for  me  is  completed,  I  promise  to  pay," 
&c.,  it  was  held,  that  the  parties,  by  inserting  a  specific  date  of  payment,  had  made  it 
payable  at  all  events,  whether  the  house  was  com])letcd  or  not;  and  that  consequently 
the  note  was  negotiable.  In  Cota  i'.  Buck,  7  Met.  588,  the  instrument  was  in  this 
form  :  "  For  value  received  I  promise  to  pay  J.  P.  or  bearer  $.570,  it  being  for  property 
I  purchased  of  him  in  value  at  this  date,  as  being  i)ayabic  as  soon  as  can  be  realized  of 
the  aliove  amount  for  the  said  pi-opcrty  I  have  this  day  jjurcliascd  of  said  P.,  which  is 
to  be  paid  in  the  course  of  the  season  now  coming."  Held,  that  it  was  a  negotiable 
promissory  note.  Sluuv,  C.  J.  said  :  "  This  note,  we  think,  was  ))ayal)le  by  the  prom- 
isor at  all  events,  and  within  a  certain  limited  time.  The  note  is  obscurely  written 
and  ungramniatical.  But  we  think  the  meaning  was  this  ;  that  the  signer,  for  value 
received  in  the  jmrchase  of  property,  ])romised  to  pay  Pero  or  bearer  the  sum  named 
as  soon  as  the  termination  of  tlie  conung  season,  anil  sooner  if  the  amount  could  bo 
sooner  rculi/cd  out  of  the  fund.  Smh  icfcrence  to  the  sale  of  the  property  was  not  to 
fix  the  fund  fnjin  which  it  was  to  be  p;iid,  but  the  time  of  payment.  The  undertaking 
to  pay  was  absitbite,  and  did  not  depend  on  the  fund  So  as  to  the  lime,  whatever 
time  may  be  un<lerstood  as  the  '  coming  season  ';  whetlier  harvest  lime  or  the  end  of 
the  year,  it  must  come  by  mere  lapse  of  time,  and  that  must  be  the  ultimate  limit  of 
the  time  if  payment."     But  in  Alexander  v.  Thomas,  IG  Q.  D    333,  it  was  field,  that 


CH.  III.]  CERTAINTY    AS   TO   THE    TIME    OF   PAYMENT.  41 

not  easy  to  discover  them,  unless  the  note  was  read  as  a  {iromise 
to  pay  on  the  20th  of  May  at  all  events,  and  sooner  if  the  build- 
ing was  finished  sooner.  It  has  been  held  that  a  promise  in  writ 
ing  to  pay  A  a  certain  sum,  "  in  such  manner  and  proportions, 
and  at  such  time  and  place,  as  he  shall,  from  time  to  time,  re- 
quire," is  a  promissory  note.{iv) 

In  general,  it  is  not  essential  to  a  note  that  it  should  be  dat- 
ed ;  (.?;)  and  if  there  be  no  date,  it  will  be  considered  as  dated  at 
the  time  it  was  made.(y)  If  it  be  dated,  the  date  will  be  prima 
facie  evidence  of  the  time  when  the  note  was  made,(c)  but  not 
conclusive. (rt)     So  a  note  may  be  dated  forward  or  antedated. (6) 


an  order  for  a  sum  "  payable  ninety  days  after  sight,  or  when  realized,"  is  not  a  bill  of 
exchange,  as  the  latter  alternative  makes  the  sum  payable  on  a  contingency.  For  the 
plaintiff  it  was  said  :  "  The  meaning  of  the  bill  of  exchange  as  described  in  the  declara- 
tion is,  that  it  is  to  be  paid  ninety  days  after  sight  at  all  events,  or  sooner  if  the  drawee 
is  in  funds  before  that  period."  Lord  Campbell:  "Even  on  this  construction  it  would 
be  uncertain  wiicther  it  would  be  payable  at  all  within  the  ninety  days,  and  if  payable 
within  that  time,  on  what  particular  day.  it  would  be  so  payable."  And  afterwards  his 
Lordshi]),  in  delivering  his  judgment,  said:  "If  we  could  reject  the  words  'or  when 
realized  '  as  insensible,  the  hill  would  certainly  be  unexceptionable.  But  a  reasonable 
meaning  has  already  been  ascribed  to  them,  viz.  '  or  when  you  are  in  funds  for  the 
purpose.'  I  do  not  see  why  this  alternative  is  to  be  taken  as  limited  to  the  term  before 
the  expiration  of  the  ninety  days  rather  than  after.  I  should  say  the  meaning  is,  that 
the  bill  is  to  be  paid  at  the  end  of  ninety  days  if  the  drawee  should  be  then  in  funds, 
if  not,  that  it  shall  bo  payable  afterwards.  Even,  however,  if  the  other  is  the  right 
meaning,  nameh',  that  the  bill  is  payable  sooner  if  the  drawee  should  be  sooner  in 
funds,  and' if  not,  at  the  end  of  ninety  days  at  all  events,  I  think  this  would  not  l)e  a 
good  bill  ;  for  the  holder  would  have  to  watch  and  ascertain  the  precise  time  when  the 
bill  should  become  payable,  and,  if  he  failed  in  doing  this  and  in  duly  j)resenting  it, 
tiie  drawer  would  be  discharged.  I  am  of  opinion  that  this  is  not  a  good  bill  of  ex- 
change, drawn  according  to  the  custom  of  merchants,  so  as  to  relieve  the  i)laintiff  from 
the  necessity  of  stnting  a  consideration  for  it."  And  see  Hensehel  v.  Mahler,  3  Denio, 
428. 

iw)  Goslien,  &c.  Turnp.  Co.  v.  Ilurtin,  •)  Johns.  217  ;  Washington  County  Mut.  Ins. 
Co.  V   Miller,  26  Vt.  77. 

(.r)   See  Michigan  Ins.  Co.  v.  Leavenworth,  30  Vt.  II. 

{//)  I)e  la  Courtier  v.  Bellamy,  2  Show.  422  ;  Hague  v.  French,  3  B.  &  P.  1 73  ;  Giles 
y  Bourne,  6  Maule  &  S.  73 

(s)  Anderson  v.  Weston,  6  Bing.  N.  C.  296  ;  Emery  v.  Vinall,  26  Maine,  295  ;  Tay- 
lor V.  Kinloch,  1  Stark.  17.5  ;  Obi)ard  v.  Betliam,  Moody  &  M.  483  ;  Smith  v.  Battens, 
1  Moody  &  R.  341.  But  sec  Cowie  v.  Harris,  Moody  &  M.  141  ;  Rose  v.  Rowcroft, 
4  Camp.  24.5. 

(a)  Dean  v.  De  Lezardi,  24  Missis.  424  ;  Aldridge  v.  Branch  Bank,  17  Ala.  45.  But 
the  maker,  it  seems,  will  not  be  allowed  to  contradict  the  date  of  the  note,  to  the  preju- 
dice of  a  bona  fide  holder.     Huston  v.  Young,  33  Maine,  85. 

(b)  Gray  v.  Wood,  2  Harris  &  J.  328  ;  Richter  v.  Selin,  8  S.  &  R.  425  ;  Pasmore  v 
North,  13  East,  517      The  case  of  Serlc  v.  Norton,  9  M.  &  W.  309,  is  entirely  consistent 

4* 


42  NOTES   AND   BILLS.  [CIL  HI. 

If  dated  forward,  and  any  of  the  parties  die  before  the  day  comes, 
such  death  will  not  affect  the  rights  of  a  bona  fide  holder,  (c) 


SECTION    V. 

OF    CERTAINTY    AS    TO    THE    FACT    OF    PAYMENT. 

The  necessity  of  this  certainty,  which  is  perhaps  the  most 
important  of  all,  is  usually  expressed  by  the  rule,  that  the  prom- 
ise must  not  be  on  a  contingency.  The  reason  of  this  is  very 
apparent.  The  paper  is  intended,  if  negotiable,  to  circulate  in 
business  as  money ;  and  this  on  the  ground  that  on  a  certain  day 
it  will  become  money.  It  is  perfectly  obvious,  therefore,  that  all 
chances  of  a  failure  in  this  respect  must  be  avoided,  against 
which  it  is  possible  to  guard.  The  possibility  of  the  insolvency 
of  the  promisor,  or  his  inability  to  pay  when  the  time  of  payment 
comes,  is  a  risk  that  must  always  be  borne ;  but  it  would  be  most 
unwise  to  add  to  this  other  contingencies  ;  for  if  these  could  be 
estimated  between  the  original  parties,  a  subsequent  holder  of 
the  paper,  or  one  to  whom  it  was  offered  in  the  course  of  busi- 
ness, might  be  wholly  vmable  to  judge  of  the  probabilities  of  the 
contingency,  and  estimate  the  risk  accordingly. 

Thus,  if  the  money  be  payable  "  provided  J.  S.  shall  leave  me 
sufficient,  or  I  shall  otherwise  be  able  to  pay  it,"  this  is  a  fatal 
contingency. (c?)  So  if  the  promise  is  connected  with  the  receipt 
of  drafts  or  notes,  and  is  to  be  understood  as  a  promise  to  repay 
them ;  if  they  are  not  paid,  nothing  will  be  due  on  the  promise, 
and  as  it  is  not  certain  that  they  will  be  })aid,  this  also  is  a  con- 
tingency fatal  to  the  character  of  the  paper  as  a  promissory  note. 


with  the  statement  in  the  text.  It  was  there  held,  that  a  post-dated  chorli  is  altogether 
void,  and  cannot  1)0  received  in  evidence  for  any  purpose.  IJut  this  decision  proceeded 
entirely  ui)on  a  provision  in  an  Enj^lish  Stamp  Act.  Cliancellor  Kent  seems  to  havo 
supposed  tliat  it  was  independent  of  any  statutory  provision.  In  3  Kent,  Com.  75,  note, 
he  says  :  "  In  the  late  case  in  Knj;Iand  of  Serle  r.  Norton,  9  M  v<t,  W.  .lOO,  a  jiost-datcd 
clieck  was  held  altogether  void.     We  may  well  demur  to  that  decision." 

[c)  Pasmore  i>.  North,  13  East,  517.  In  this  case  it  was  hiM,  that  the  indorsee  of  a 
bill  of  exchange,  made  payable  sixty-five  days  after  date,  which  was  issued  by  the 
drawer  and  indorsed  i)y  the  ])ayee,  who  died  before  the  ^ay  when  it  bore  date,  may 
make  titli'  through  such  indorsement,  in  order  to  recover  on  the  bill  against  the  drawer 

((/)  Roberts  v.  I'takc,  1  Burr.  3'.J3. 


CH.  III.]  CERTAINTY   AS   TO   THE   FACT   OF  PAYMENT.  43 

even  if  it  be  not  negotiable,  (e)  If  payable  provided  terms  expressed 
in  certain  letters  or  other  documents  arc  complied  with  ;  (/)  or  on 
condition  that  the  note  shall  be  void  if  any  dispute  shall  arise  as 
to  the  consideration  for  it ;  (g-)  or  for  the  payment  of  all  balances 
which  shall  be  due  from  the  maker  to  the  extent  of  the  amount 
expressed  in  the  note ;  (h)  or  jjayable  when  certain  property  is  sold 
by  the  drawee  ;  (i)  or  if  A  shall  not  be  surrendered  to  prison  within 
a  certain  time  ;  (j)  or  if  A  shall  not  pay  certain  money  on  a  cer- 
tain day  ;  (k)  or  if  it  be  payable  only  out  of  a  particular  fund,  as 
''  out  of  my  growing  subsistence,"  (/)  or  "  out  of  rents,"  (m)  or 
"out  of  money  in  the  hands  of,"  &c.;{n)  or  "  out  of  certain  money 
as  soon  as  it  shall  be  received  "  ;  (o)  or  "  out  of  a  certain  payment 
when  due ;  "(p)  or  "  for  value  received  in  stock,  &c.,  this  being  in- 
tended to  stand  against  me  as  a  set-off  for  that  sum  left  me  by  my 
father  above  my  sister's  share,"(<7)  which  would  not  be  payable  if 
the  will  were  not  finally  carried  into  effect ;  or  "  provided  A  shall 
not  return  to  England,  or  his  death  be  certified  before,"  &c. ;  (r) 
or  payable  "four  years  after  date,  if  I  am  then  living"  ;  (5)  or 


(e)  "Williamson  v-  Bennett,  2  Camp.  417. 

(/)   Kingston  v.  Long-,  Baylcy  on  Bills  (2d  Am.  cd.),  14,  n.  (30),  4  Doug.  9. 

Ig)  Hartley  v.  Wilkinson,  4  Camp.  127,  4  Maule  &  S.  25. 

(/i)  Leeds  v.  Lancashire,  2  Camp.  203. 

{{)  De  Forest  v.  Frary,  6  Cowen,  1.51. 

(j)  Smith  w.  Boheme,  cited  in  Jenncy  v.  Herle,  2  Ld.  Eaym.  1361,  and  in  Morris  v, 
Lee,  2  Ld.  Raym.  1396.     For  the  pleadings,  see  3  Ld.  Raym.  63. 

(k)  Appleby  v.  Biddolph,  cited  in  Morice  v.  Lee,  8  Mod.  362. 

(I)  Josselyn  v.  Lacier,  10  Mod.  294,  317,  Fort.  281. 

{m)  Diet,  in  Jenney  v.  Herle,  2  Ld.  Raym.  1362. 

(«)  Jenney  v.  Herle,  2  Ld.  Raym.  1361,  1  Stra.  591,  8  Mod.  266. 

(0)  Dawkes  v.  De  Lorane,  3  Wilson,  207,  2  W.  Bl.  782.  In  this  case  De  Grey,  C  J. 
said  :  "  The  instrument  or  writing  which  constitutes  a  good  bill  of  exchange  according 
to  the  law,  usage,  and  custom  of  merchants,  is  not  confined  to  any  certain  form  or  set 
of  words,  yet  it  must  have  some  essential  qualities,  without  which  it  is  no  bill  of  ex- 
change ;  it  must  carry  with  it  a  personal  and  certain  credit  given  to  the  drawer,  not 
confined  to  credit  upon  any  thing  or  fund :  it  is  upon  the  credit  of  a  person's  hand,  as 
on  the  hand  of  the  drawer,  the  indorser,  or  the  person  who  negotiates  it ;  he  to  whom 
such  bill  is  made  payable  or  indorsed  takes  it  upon  no  particular  event  or  contingency, 
except  the  failure  of  the  general  personal  credit  of  the  persons  drawing  or  negotiating 
the  same." 

(p)  Haydock  v.  Lynch,  2  Ld.  Eaym.  1563. 

[q]  Clarke  v.  Percival,  2  B.  &  Ad.  660. 

(?•)  Morgan  v.  Jones,  1  Cromp.  &  J.  162. 

(?)  Braham  v.  Bubb,  ChiUy  on  Bills  (9th  cd.),  135.  Abbott,  C.  J.  said  :  "  I  think  thia 
is  not  like  a  note  payable  on  the  maker's  death,  which  is  an  event  that  must  happen, 
but  here  it  is  contingent  whether  the  note  will  ever  be  payable;  for  if  the  maKcr  should 
die  within  the  four  years,  no  payment  is  to  be  made." 


44  NOTES    AND   BILLS.  [CH.  IE. 

at  certain  periods,  the  instalments  to  cease  at  the  death  of  the 
payee ;  (t)  or  to  pay  one  certain  wages  "  if  he  do  his  duty  as," 
&c.  ;  {u)  none  of  these  promises  would  be  held  to  be  sufficiently 
absolute  and  free  from  condition  or  contingency  to  satisfy  the 
requirements  of  a  promissory  note,  even  if  it  were  not  negotiable. 
On  the  same  principle,  a  guaranty  can  never  be  a  promissory 
note,  for  it  is  not  an  absolute  promise  to  pay  money.  The  con- 
trary doctrine  seemed  at  one  time  to  be  established  in  Xew 
york,(r)  but  it  has  been  entirely  overthrown  by  more  recent 
cases. (?6')  The  statement  of  a  particular  fund  in  a  bill  of  ex- 
change will  not  vitiate  it,  if  it  be  inserted  merely  as  a  direction 
to  the  drawee  how  to  reimburse  himself. (.r)  So  also,  it  is  no 
objection  to  a  bill  or  note,  that  it  states  the  transaction  out  of 
which  it  arose,  or  the  consideration  for  which  it  was  given. (y) 
In  many  of  the  above  cases  it  was  an  order  rather  than  a 

{t)  Worley  v.  Harrison,  -3  A.  &  E.  669.  If  there  is  a  contingency,  it  matters  not  whether 
it  is  one  upon  which  the  liability  is  to  cease  or  to  arise  ;  in  other  words,  whether  it  is  a 
condition  precedent  or  a  condition  subsequent.     lb. 

(t()  Alves  V.  Hod«,rson,  7  T.  R.  241. 

(v)  Lcquecr  i-.  Prosscr,  1  Hill,  256,  4  Hill,  420;  Hongh  v.  Gray,  19  Wend.  202; 
Ketchell  v.  Burns,  24  Wend.  4.56  ;  Miller  v.  Gaston,  2  Hill,  188. 

(w)  See  Manrow  v.  Durham,  3  Hill,  584,  2  Comst.  5.33  ;  Brown  ?•.  Curtiss,  2  Comst. 
225  ;  Hall  v.  Farmer,  5  Dcnio,  484,  2  Comst.  553  ;  Brewster  v.  Silence,  4  Seld.  207. 
And  see  Lcggett  v.  Raymond,  6  Hill,  639  ;  Weed  v.  Clark,  4  Sandf.  31  ;  Robins  v. 
May,  11  A.  &  E.  213  ;  Tinker  v.  McCaulcy,  3  Mich.  188,  overruling  Iliggins  v.  Wat- 
son, 1  Mich.  428. 

(r)  Thus,  where  A.  B.,by  an  order  in  writing,  requested  the  defendant  to  pay  to  the 
plaintiff  or  order  £9  10s.  "  as  my  quarterly  lialf-pay,  to  be  due  from  24th  of  June  to 
27th  of  September  ne.\t,  by  advance,"  it  was  lield,  that  this  was  a  bill  of  excliange. 
The  court  .said  :  "  The  mention  of  the  half-pay  is  only  by  way  of  direction  how  he  shall 
reimburse  himself,  but  the  money  is  still  to  be  advanced  on  the  credit  of  the  person." 
Macleod  v.  Snee,  2  Stra.  762,  2  Ld.  Raym.  1481.  In  Reesidc  v.  Knox,  1  Miles,  294, 
2  Wliart.  233,  it  was  held,  that  an  order  drawn  by  a  mail-contractor  upon  the  Post- 
master-General for  a  certain  sum,  and  directing  him  to  charge  the  same  "  to  my  account 
for  transporting  the  U.  S.  mail,"  was  not  a  bill  of  exchange.  The  decision,  however, 
was  not  based  upon  the  form  of  the  bill,  but  upon  the  fact  that  it  was  drawn  upon  gov- 
ernment. Sedqacere.  Sec  United  States  i".  Bank  of  the  Metropolis,  15  Pet.  377.  See 
ftirthcr,  Strader  v.  Batchelor,  8  B.  Mon.  168;  Rice  v.  Porter,  1  Harrison,  440;  Bank 
of  Kentucky  v.  Sanders.  3  A.  K.  Marsli.  184  ;  KcUcy  v.  Mayor  of  Brooklyn,  4  Hill, 
263  ;  Coursin  v.  Lcdlic,  31  Penn.  State,  506. 

(i/)  Thus,  in  Haussoullicr  v.  Ilartsinck,  7  T.  R  733,  it  was  held,  that  a  note  by  which 
A  promised  to  pay  to  the  bearer  £  50,  "  being  a  portion  of  a  value  as  under  deposited 
in  security  for  the  payment  thereof,"  might  be  declared  on  as  a  promissory  note.  So 
in  Wells  c.  Brigliam,  6  Cusli.  6,  it  was  held,  that  an  order  directing  the  dif.ndant  to 
pay  A.  B.  a  certain  sum,  "  which  is  due  mc  for  the  twohorse  wagon  iiought  last  spring," 
was  a  bill  of  excliange.  And  sec  Fiincourt  r.  'J'hornc,  9  <).  B.  312;  Vanicr  r.  Noble- 
borough  2Grecnl.  121.     See,  however,  Van  Wagner  r.  Terrett,  27  Barb   lei. 


CH.  III.]  CERTAINTY   AS   TO    THE    FACT    OF   PAYMENT.  45 

promise,  and  the  question  was  not  whether  a  certain  instrument 
was  a  promissory  note,  but  whether  it  was  a  bill  of  exchange. 
In  this  respect,  however,  these  instruments  are  precisely  the 
same.(c) 

As  it  is  the  purpose  of  promissory  notes  to  represent  money, 
and  to  perform,  so  far  as  possible,  all  its  functions,  it  is  of  course 
necessary  that  they  should  be  payable  in  money.  A  promise  in 
writing,  therefore,  to  pay  or  deliver  specific  articles,  or  to  do  any 
act  other  than  pay  money,  has  none  of  the  characteristics  or  privi- 
leges of  negotiable  paper.  And  though  it  contain  a  promise  to 
pay  money,  if  it  also  contain  a  promise  to  do  something  else,  it 
is  not  a  promissory  note.  Thus,  a  note  promising  to  deliver  up 
horses  and  a  wharf  and  pay  money  on  a  particular  day  is  not  a 
promissory  note. (a)  So  if  the  promise  is  in  the  alternative  to 
pay  a  certain  sum  in  money  or  specific  articles,  it  is  not  a  prom- 
issory note.  (6) 

On  one  point  there  is  some  difference  between  the  English 
authorities  and  our  own,  and  some  conflict  in  those  of  this 
country.  In  England  it  is  held  quite  strictly  that  the  promise 
must  be  to  pay  money ;  and  a  promise  to  pay  a  sum  "in  good 
East  India  bonds,"  or  even  "  in  cash  or  Bank  of  England  notes," 


(2)  The  cases  upon  this  subject  arc  very  numerous,  but  we  do  not  deem  it  necessary 
to  state  them  more  at  length.  Richardson  v.  Martyr,  Q.  B  18.5.T,  30  Eng.  L.  &  Eq. 
363;  Raigauel  v.  Ayliff,  16  Ark.  .594;  Owen  v.  Lavine,  14  Ark.  389;  Hamilton  v. 
Myrick,  3  Ark.  541  ;  Henry  v.  Hazen,  f>  Ark.  401  ;  Smalley  v.  Edey,  1.5  111.  324, 
Kinney  v.  Lee,  10  Texas,  155  ;  Shenton  v.  James,  5  Q.  B.  199  ;  Dyer  v.  Covington 
Townsliip,  19  Penn.  State,  200  ;  Mills  v.  Kuykendall,  2  Biackf.  47  ;  Dnuy  v.  Macaulay, 
16  M.  &  W.  146 ;  Banbury  r.  Lisset,  2  Stra.  1211  ;  Carlos  v.  I'ancourt,  5  T.  K.  482  ; 
West  V.  I'oreman,  21  Ala.  400;  Shields  v.  Taylor,  25  Missis.  13;  Worden  v.  Dodge, 
4  Denio,  159  ;  Hodges  v.  Hall,  5  Ga.  163  ;  Van  Vacter  v.  Flack,  1  Smedes  &  M.  393 ; 
Crawford  v.  Cully,  Wright,  453  ;  Wiggins  v.  Vaught,  Cheves,  91  ;  Weidler  v.  Kauff- 
man,  14  Ohio,  455  ;  Cook  v.  Satterlee,  6  Cowen,  108;  Atkinson  v.  Manks,  1  Cowen, 
691  ;  Waters  v.  Carleton,  4  Port.  205;  Tucker  r.  Maxwell,  11  Mass.  143;  Nichols  v. 
Davis,  1  Bibb,  490  ;  Smurr  r.  Fornian,  1  Ohio.  272  ;  Curie  v.  Beers.  3  J.  J.  Marsh. 
170;  Coolidge  v.  Rugglcs,  15  Mass,  387;  Fralick  i\  Norton,  2  Mich.  130;  Drawn  v. 
Cherry,  14  La.  Ann  694;  Lanfcar  v.  Blossman,  1  La.  Ann.  148. 

(a)  Martin  v.  Chauntry,  2  Stra.  1271.  And  see,  to  the  same  effect,  Wallace  v.  Dyson, 
1  Speers,  127;  Barnes  v.  Gorman,  9  Rich.  297;  Austin  v  Burns,  16  Barb.  643; 
Knight  (;.  Wilmington  &  M.  R.  R.  Co.,  1  Jones,  N.  Car.  357  ;  Jerome  v.  Whitney, 
7  Johns.  321;  Saxtou  v.  Johnson,  10  Johns.  418;  Peppen  i;.  Pcytavin,  12  Mart. 
La.  671. 

(b)  Dennett  r.  Goodwin,  32  Maine,  44  ;  Matthews  v.  Houghton,  2  Fairf.  377;  Alex- 
ander r.  Oaks,  2  Dev.  &  B.  513 ;  Atkmson  v.  Manks.  1  Cowen,  691. 


4B  NOTES   AXD   BILLS.  [CH.  m. 

was  held  not  to  be  sufficient. (c)  Such  seems  to  be  the  rule  m 
Massachusetts. (fZ)  But  in  New  York,  "payable  in  York  State 
bills  or  specie,"  (e)  was  held  good  ;  and  so  was  a  note  payable 
in  "bank-notes  current  in  the  city  of  New  York."(/)  But  one 
payable  in  "  Pennsylvania  or  New  York  paper  currency,  to  be 
current  in  the  State  of  Pennsylvania  or  the  State  of  New  York," 
was  held  in  New  York  not  to  be  a  good  note.(g')  In  Pennsyl- 
vania, a  note  payable  "  in  bank-notes  of  the  chartered  banks 
of  Pennsylvania"  was  held  not  to  be  a  negotiable  note.(/<)  In 
Tennessee,  it  is  held  that  a  note  payable  "  in  current  bank- 
notes," or  "  current  bank-notes  of  Tennessee,"  is  not  a  nego- 
tiable instrument. (i)  In  England,  Bank  of  England  notes  are 
a  legal  tender  by  law  excepting  by  the  bank  itself ;  (j)  and  in 


(c)  Ex  parte  Imeson,  2  Rose,  225 ;  Ex  parte  Davison,  Buck,  31  ;  Bull.  N.  P.  272. 

(d)  Jones  v.  Fales,  4  Mass.  245  ;  and  see  Young  v.  Adams,  6  Mass.  182. 

(e)  Keith  v.  Jones,  9  Johns.  120. 
(/)  Judah  V.  Harris,  19  Johns.  144. 

(fj)  Lcibcr  v.  Goodrich,  5  Cowen,  186.  Sutherland,  J.  said  :  "  Payment  in  any  bank- 
bills  generally  current  in  the  State  of  Pennsylvania,  although  not  current  in  this  State, 
would  satisfy  the  terms  of  the  note.  Its  legal  effect,  therefore,  is  the  same  as  though  it 
had  been  payable  merely  in  baJik-bills  current  in  the  State  of  Pennsylvania.  Are  such 
bills  known,  approved  of,  and  used  in  this  State  as  cash  ?  I  believe  that  in  truth  most 
of  the  Pennsylvania  bills  pass  only  at  a  discount  in  this  State.  But  if  the  fact  be 
otherwise,  it  certainly  is  not  so  notorious  that  we  can  officially  take  notice  of  it.  The 
note,  therefore,  is  not  payable  in  cash,  but  in  something  differing  in  value  from  cash. 
Of  course  it  is  not  negotiable  under  the  statute York  State  bills,  and  bank- 
notes current  in  the  city  of  New  York,  have  been  held  to  be  equivalent  to  lawful  cur- 
rent money  of  the  State.  We  may  officially  take  notice  that  our  own  bank  paper  is, 
in  conformity  with  common  usage  and  common  understanding,  regarded  as  cash.  But 
we  cannot  be  supposed  judicially  to  know  the  value  of  the  paper  currency  of  other 
States."  The  question  in  this  case  arose  on  a  demun-er  to  the  declaration.  In  Thomp- 
son V.  Sloan,  23  Wend.  71,  it  was  held,  that  a  note  made  in  New  York  for  $2,500, 
"  payable  at  the  Commercial  Bank  in  Buffalo,  in  Canada  money,"  was  not  negotiable. 
And  in  Little  v.  Phenix  Bank,  2  Hill,  425,  7  Hill,  359,  it  was  hild,  that  a  check 
drawn  in  New  York  upon  a  bank  in  Mississippi,  payable  in  current  bank-notes,  was 
not  negotiable. 

(/()  M'Cormick  v.  Trotter,  10  S.  &  R-  94.  Duncan,  J.  said:  "It  was  not  a  promise 
to  pay  money,  either  in  legal  contemplation  or  in  the  contemplation  of  tlie  parties  when 
they  contracted.  It  is  an  unanswerable  objection  to  the  action,  that  the  defendant 
might,  according  to  this  contract,  have  temlcred  the  .1500  in  the  notes  of  any  chartered 
bank,  however  depreciated  their  paper  might  be.  In  a  note  for  money,  nothing  but 
CTirrcnt  coin  would  be  a  tender."  So  in  Gray  v.  Ponahoe,  4  "Watts,  400,  it  was  held, 
that  a  note  payable  "  in  current  bank-notes"  was  not  negotiable. 

(i)  Gamitle  v.  Hatton,  Peck,  130;  Childress  v.  Stuart,  Peck,  270;  Kirkpatrick  v. 
McCulough,  3  Humph.  171  ;  Wliitcman  v.  Childress,  C  Humph.  303. 

[j)  Hcc  pnst,  chapter  on  Bank-Notcs. 


CH.  ni.]  WHEN  AN  UNCERTAINTY  IS  MATTER  OF  FORM.  47 

this  country  no  paper  is  so.  It  is  a  little  remarkable,  therefore, 
that  the  law  in  that  country  is  more  strict  on  this  point  than 
in  our  own,  Wc  think  it  not  more  strict  only,  buc  more  sound 
and  more  in  harmony  with  the  nature,  purpose,  and  function  of 
negotiable  paper.  We  add  in  a  note  a  few  additional  authorities 
on  this  question. (/c) 


SECTION    VI. 

WHEN  AN  UNCERTAINTY  IS  MATTER  OF  FORM  AND  NOT  OF  SUBSTANCE. 

It  should  be  remarked,  to  prevent  misconception,  that  the 
question  whether  such  a  condition,  contingency,  or  uncertainty 
as  either  of  those  above  enumerated  prevents  a  written  paper 
from  being  a  promissory  note,  is,  not  unfrequently,  one  of 
form  rather  than  of  substance,  unless  the  note  be  negotiable 
and  negotiated,  and  the  question  occurs  in  relation  to  one  or 
more  persons  who  are  parties  to  the  note  or  interested  in  it 
under  the  law  of  indorsement.  In  that  case,  if  the  uncertainty 
were  such  tl\at  the  instrument  was  not  a  negotiable  promissory 
note,  it  would  seldom  be  the  case  that  it  could  have  any  obli- 

(k)  In  Irvine  w.  Lowry,  14  Pet.  293,  it  was  held,  that  a  note  payable  "in  office  notes 
of  the  Lumberman's  Bank,"  was  not  negotiable.  In  Hasbrook  v.  Palmer,  2  McLean, 
10,  it  was  held,  that  a  note  executed  in  Michigan,  payable  in  New  York,  in  New  York 
funds  or  their  equivalent,  was  not  negotiable.  In  Fry  v.  Rousseau,  3  McLean,  106,  it 
was  hehl,  that  a  note  payable  "in  current  bank-bills  "  was  not  negotiable.  To  the  same 
eifect  is  Collins  v.  Lincoln,  11  Vt.  268,  where  the  note  was  payable  "  in  current  bills." 
And  see  State  v.  Corpening,  10  Ired.  58  ;  Kirkpatrick  v.  McCulough,  3  Humph.  171 ; 
Whiteman  v.  Childress,  6  id.  303.  In  Swetland  v.  Creigh,  1.5  Ohio,  118,  it  was  held, 
that  a  note  payable  "  in  current  Ohio  bank-notes  "  was  for  a  sum  certain,  and  nego- 
tiable. The  same  was  held  in  White  v.  Eichmond,  16  Ohio,  5,  where  the  note  was 
payable  "  in  current  funds  of  the  State  of  Ohio."  See  Besancon  v.  Shirley,  9  Smcdes 
&  M.  457.  In  Lange  v.  Kohne,  1  McCord,  115,  it  was  held,  that  a  note  payable  in 
"  paper  medium  "  was  not  negotiable.  And  see  Bank  of  Hamburg  v.  Johnson,  3  Rich. 
42.  In  Lacy  v.  Holbrook,  4  Ala.  88,  it  was  held,  that  a  note  payable  in  "funds  current 
in  the  city  of  New  York  "  was  negotiable.  In  Arkansas  it  has  been  held,  that  a  note 
payable  "  in  good  current  money  of  this  State,"  or  in  "  Arkansas  money,"  is  nego- 
tiable. Graham  v.  Adams,  5  Ark.  261  ;  Wilburn  v.  Greer,  1  Eng.  255.  Otherwise, 
if  it  be  payable  "  in  Arkansas  money  of  the  Fayetteville  Brancli."  Hawkins  v.  Wat- 
hins,  5  Ark.  481.  Sec  Wilamouicz  v.  Adams,  8  Eng.  12  ;  Farwell  v.  Kennctt,  7  Misso. 
595.  In  Ogden  v.  Slade,  1  Texas,  13,  a  note  payable  in  lawful  funds  of  the  United 
States  or  its  equivalent  was  held  to  be  payable  in  gold  or  silver  or  paper  currency,  and 
was  considered  as  negotiable  under  the  "  very  peculiarly  blended  system  of  law  and 
equity  "  in  Texas.  See  also  Fleming  v.  Nail,  1  Texas,  246 ;  Chevallier  v.  Buford, 
id.  503. 


48  NOTES   AND    BILLS.  [CH.  IIL 

gation  or  any  efficacy  whatever.  "Wliereas,  if  the  objection  was 
fatal  to  the  paper  as  a  promissory  note,  hut  it  was  not  nego- 
tiable, or.  if  negotiable,  not  negotiated,  or  indeed  if  it  had  been 
negotiated,  but  this  question  arose  between  the  original  parties, 
though  it  could  not  be  declared  upon  as  a  promissory  note,  it 
might  still  be  evidence  of  an  agreement.  And  a  party,  by 
framing  his  case  accordingly,  might  generally  secure  all  the  ad- 
vantages which  would  belong  to  the  instrument  as  a  promissory 
note.  But  then  he  would  be  obliged  to  aver  and  to  prove  a 
consideration  for  the  promise,  and  also  that  the  condition  had 
been  performed,  or  that  the  contingency  had  occurred  on  which 
the  promise  was  made.  And  if  in  the  actual  contract  there  was 
such  a  condition  or  contingency,  and  the  plaintiff  did  not  state 
it,  the  defendant  might  show  it  in  defence.  Whereas  if  the 
plaintiff  relied  upon  the  written  instrument  as  a  promissory  note, 
it  would  not  relieve  him  from  the  objection  of  contingency  to 
aver  and  prove  that  the  contingency  had  happened  or  the  condi> 
tion  been  performed  on  which  the  promise  was  dependent,  be- 
cause no  such  event  could  make  a  paper  so  written  a  promissory 
note.  And  on  the  other  hand,  if  it  were  on  its  face  free  from 
any  such  objection,  the  defendant  could  not  avoid  the  note  by 
showing  that  such  condition  or  contingency  entered  into  the  bar- 
gain ;  although  he  might,  under  certain  circumstances,  make 
out  a  substantial  defence  on  this  ground. 


SECTION     VII. 

OF    DELIVERY. 

This  is  one  of  the  essentials  of  bills  and  notes,  for  although  it 
is  often  said  that  a  note  is  made,  when  all  we  mean  is  that  it  has 
been  written  and  signed,  the  note  is  not  made  in  a  legal  sense, 
that  is,  it  is  not  perfected,  and  the  maker  is  under  no  obligation 
whatever  as  maker,  until  it  is  delivered. (Z) 

(0  Hopper  V.  Eiland,  21  Ala.  714  ;  Cliambcrl.ain  v.  IIopps,  8  Vt.  94  ;  Lansing 
V.  Gainc,  2  Johns.  ;)00;  Marvin  v.  McCnllum,  20  Johns.  288.  A  indorsed  a  note, 
and  died  before  delivery.  His  executor  delivered  it.  Hold  that  no  title  passed. 
Clark  t;.  Boyd,  2  Ohio,  56;  Broinagc  v.  Lloyd,  1  Exch.  32;  Clark  v.  Sigourney, 
17  Conn.  511.     Otlierwi.sc  if  delivered  to  a  person  who  had  made  advances  on  the  faith 


CII.  III.j  DKLIVKRY.  4i» 

Some  questions  have  arisen  as  to  what  rights  or  obUgations  are 
created  by  promissory  paper  which  was  completely  written  and 
signed,  but  never  actually  delivered  by  the  promisor,  and  was 
stolen  from  him,  or  lost  by  him  and  found  by  another,  and  by  the 
tliief  or  finder  passed  to  an  innocent  holder  for  value.  These 
questions  are  considered  elsewhere. (wi) 

As  a  note  takes  effect  only  by  delivery,  so  it  takes  effect  only 
on  delivery,  and  if  this  delivery  be  subsequent  to  the  date,  it  is 
Btill  to  be  considered  as  valid  only  from  that  day.(Ai)  In  the  ab- 
sence of  evidence  to  the  contrary,  the  law  will  presume  that  it 
was  delivered  on  the  day  of  the  date.(o) 

If  it  be  made  payable  in  so  many  days,  or  weeks,  or  month':!, 
from  the  date,  this  period  must  begin  from  the  date  which  the 
paper  bears,  without  reference  to  the  day  of  actual  delivery.  For 
it  is  perfectly  competent  for  the  parties  to  agree  that  the  money 
should  be  payable  when  they  please,  and  they  express  their  agree- 
ment on  this  point  by  making  it  payable  in  so  many  days  from  a 
certain  day.  Thus,  if  a  note  payable  in  three  months  frojii  date, 
were  delivered  four  months  after  date,  it  would  be  payable  on 
demand. 

If  a  note  payable  on  time  had  no  date,  the  time  naust  be 
counted  from  the  delivery.  And  this  must  be  the  actual  deliv- 
ery, if  that  can  be  proved.     If  not,  then  the  time  will  begin  from 


of  the  bill.  Perry  v.  Crammond,  1  Wash.  C.  C.  100.  See  Michigan  Ins.  Co.  v.  Leav- 
enworth, 30  Vt.  11.  Delivery  is  necessary  to  an  acceptance.  Co.x  v.  Troy,  5  B.  & 
Aid.  474,  1  Dow  &  R.  38,  overruling  Thornton  v.  Dick,  4  Esp.  270.  The  delivery 
must  be  to  the  party  as  indorsee.  Adams  v.  Jones,  12  A.  &  E.  453  ;  Marston  v.  Allen, 
8  M.  &  W.  494  ;  Brind  v.  Hampshire,  1  M.  &  W.  365.  The  date,  not  the  time  of  de- 
livery, fixes  the  time  from  which  payment  is  to  be  calculated.  Bum  pass  v.  Timms, 
8  Sneed,  459.  So  also  the  time  from  which  the  statute  of  limitations  begins  to  run. 
Montague  v.  Perkins,  C.  B.  1853,  22  Eng.  L.  &  Eq.  516. 

(m)  See  post,  chapter  on  Lost  Notes. 

(?i)  De  la  Courtier  v.  Bellamy,  2  Show.  422  ;  Hague  v.  French,  3  B.  &  P.  173  ;  Giles 
r.  Bourne,  6  Maule  &  S.  73,  2  Chitt.  300.  In  Powell  v.  Waters,  8  Cowen,  669,  it  was 
held,  that  a  note  when  delivered  takes  eflFcct  from  its  date  by  relation.  So  also  Snaith 
V.  Mingay,  1  Maulc  &  S.  87  ;  Barker  v.  Sterne,  9  Exch.  684.  Hence  a  note  dated  on 
Sunday,  but  delivered  on  a  week  day,  is  valid.  Lovejoy  v.  Whipple,  18  Vt.  379  ;  Al- 
dridge  v.  Branch  Bank,  17  Ala.  45  ;  Drake  v.  Rogers,  32  Maine,  524.  Sec  Clough  v. 
Davis,  9  N.  H.  500.  Where  a  statute  made  certain  kinds  of  promissory  notes,  issued 
after  a  given  day,  void,  it  has  been  held  that  the  maker  may  prove  a  note  dated  before 
that  day  to  have  been  delivered  after  it      Bayley  v.  Taber,  5  Mass.  286. 

(o)  Sinclair  ?'.  Baggaley,  4  M.  &  W.  312;  Anderson  v.  Weston,  6  Bing.  N.  C.  296; 
Roberts  v.  Bethell,  12  C.  B.  778. 

Vol.  I.— D 


50  NOTES   AND   BILLS.  [CH.  m. 

the  earliest  day  at  which  it  can  be  shown  that  the  liolder,  or  some 
one  from  whom  the  holder  derives  title,  had  possession  of  the  pa- 
per. (;;)  For  where  a  note  is  in  possession  of  a  payee,  the  law 
will  presume  that  it  was  delivered  to  him  in  accomplishment  of 
the  purpose  for  which  it  was  written. (^)  But  this  presumption 
is  always  open  to  rebutter. (r) 

From  the  presumption  of  law  in  favor  of  possession,  a  prom- 
issor  is  bound  to  pay  a  note  when  due,  in  whosever  hands  it  may 
then  be,  unless  he  can  show  that  the  holder  has  no  legal  right  to 
it ;  for  without  this  proof,  he  must  presume,  as  the  law  presumes, 
that  there  had  been  a  lawful  delivery  of  it  to  the  holder. (s) 

It  has  been  doubted  whether  a  delivery  which  gives  no  interest 
in  the  paper  can  give  title  or  authority  to  sue  it  in  the  name  of 
the  holder.     We  think  it  can  ;  and  that  a  plaintiff  may  recover 


( }>)  Camp  I'.  Tompkins,  9  Conn.  545  ;  Woodford  v.  Dorwin,  3  Vt.  82  ;  Clark  i;. 
Sigourncy,  17  Conn.  511  ;  Richardson  v.  Lincoln,  5  Met.  201. 

(7)  Set  Woodford  v.  Dorwin,  3  V't.  82.  In  tliis  case  it  a])pearcd  "  that  in  the  first  of 
the  year  1820  Samuel  Hurlburt,  Canfield  Dorwin,  and  T.  M.  Dorwin  formed  a  copart- 
nerslii|)  in  trade,  which  continued  until  the  1st  of  April,  1821,  when  they  dissolved,  and 
settled  up  their  concerns  as  between  themselves.  Hurlburt  left  the  country  previous 
to  1828,  but  at  what  particular  time  did  not  appear.  When  he  left,  he  deposited  his 
papers  in  a  box,  and  made  it  fast.  In  this  box,  it  is  said,  the  note  in  question  was 
deposited.  The  9th  of  May,  1828,  Hurlburt  addressed  a  letter  to  J.  McNeil,  in  which 
it  ai)])ears  that  Hurlburt  and  the  Dorvvins  had  money  of  Jcrusha  Woodford  (one  of 
the  plaintiffs),  and  that  the  note  in  question  would  be  found  in  the  box.  The  two 
letters  which  the  plaintiffs  contend  contain  evidence  of  a  new  promise,  or  acknowl- 
edgment of  the  debt,  are  ambiguous :  it  does  not  distinctly  appear  that  the  money, 
which  he  says  was  borrowed  of  Mrs.  Woodford,  formed  the  consideration  for  the 
note,  though  it  may  be  inferred.  In  the  first  ho  says  :  '  William  has  written  me  that 
Dorvvins  refuse  to  do  anything  about  the  note  signed  by  them  with  me  to  Mrs.  Wood- 
ford. I  have  no  distinct  recollection  about  my  settlement  with  Dorwins,'  etc.  Again  : 
'  I  had  none  of  the  $  280  note  you  went  after,  which  is  in  with  your  note  in  a  box 
nailed  up.'  He  then  gives  assurances  that  he  will  secure  the  plaintiffs  and  pay  all  ho 
owes  them  shortly.  In  the  other,  of  December  15,  1828,  he  says  :  '  Some  time  or  other 
Messrs.  C.  &  T.  M.  Dorwins  and  I,  had  some  money  of  Mother  Woodford,  for  our 
company's  use,  and  she  not  wanting  it,  we  kept  it  until  we  dissolved ;  and  ho  says  I 
was  to  pay  that  particular  debt,  and  he  the  others.'  At  the  trial  before  the  county 
court,  the  jury  were  instructed,  that  there  could  be  no  recovery  on  the  note,  as  it  did 
not  apjx'ar  to  have  been  delivered  by  the  firm  to  the  plaintiffs  or  any  other  one,  without 
which  the  contract  was  not  comjilcte."  And  the  Sujireme  Court  saiil  they  were  "sat- 
isfied that  the  note  ought  to  take  effect  from  tiic  delivery  ;  and  as  the  firm  liad  then 
long  been  dissolved,  it  had  no  binding  cff<'ct  whatever  upon  this  defendant.  Therefore, 
the  judgment  of  the  county  court  must  be  affirmed." 

(;■)  Woodford  v.  Dorwin,  3  Vt.  82;  VuUett  v.  I'arkcr,  6  Wend.  615. 

(»)  Criswold  v.  Davis,  31  Vt.  390. 


CH.  m.]  DELIVERY.  51 

if  he  produces  the  note  at  trial,  because  it  will  be  presumed,  in 
the  absence  of  evidence  to  the  contrary,  that  he  recovers  for  the 
actual  owner.  We  say,  therefore,  that  it  is  quite  enough  to 
maintain  the  suit,  that  the  owner  delivered  it  to  the  present 
holder  and  plaintiff,  for  the  purpose  of  an  action,  if  this  be  not 
done  fraudulently,  or  to  the  injury  of  the  defendant. (<) 

The  presumptions  in  favor  of  possession,  and  the  burden  of 
proof  which  they  create,  will  be  more  fully  considered  in  a  future 
section,  (i^) 

A  note,  as  well  as  a  deed,  may  be  delivered  as  an  escrow,  and 
the  law  of  escrows  is  substantially  the  same  in  both  cases.  But 
the  liability  of  the  maker  or  indorser  begins  on  the  happening  of 
the  event,  or  the  performance  of  the  conditions  for  which  it  was 
delivered  to  the  depositary,  without  any  actual  delivery  by  him 
to  the  promisee. (u) 

A  note  cannot  be  delivered  directly  to  the  promisee,  to  be  held 
by  him  as  an  escrow,  (i^;)  And  if  it  be  delivered  by  the  promisor 
only  as  an  escrow  to  a  depositary,  and  is  by  him  wrongiilly  dis- 
posed of,  and  passes  into  the  hands  of  an  innocent  holder  for 
value,  the  fact  that  it  was  delivered  as  an  escrow  will  be  no  de- 
fence against  the  holder,  (a;) 


(0  Austin  V.  Birchard,  31  Vt.  589. 

(it)  For  cases  on  this  subject,  see  Paterson  v.  Hardacre,  4  Taunt.  114  ;  Solomons  v. 
Bank  of  England,  in  notes  to  13  East,  135 ;  King  v.  Milsom,  2  Camp.  5 ;  Cruger  v. 
Arraslrong,  3  Johns.  Cas.  5  ;  Conroy  v.  Warren,  3  Johns.  Cas.  259 ;  Aldrich  v.  "War- 
ren, 16  Maine,  465 ;  Munroe  v.  Cooper,  5  Pick.  412  ;  Wheeler  v.  Guild,  20  Pick.  546. 

(v)  Couch  V.  Meeker,  2  Conn.  302.     See  Bradley  v.  Bentley,  8  Vt.  243. 

(w)  Badcock  v.  Steadman,  1  Root,  87.  See,  however,  Jefferies  v.  Austin,  1  Stra. 
674  ;  Goddard  v.  Cntts,  2  Fairf.  440. 

(x)  Vallett  V.  Parker,  6  Wend.  615. 


52  KOTES   A\D    BILLS.  [CH.  IV. 


CHAPTER    IV. 

OF    BILLS    OF    EXCHANGE, 


SECTION  I. 

WHAT    THEY    ARE. 

As  a  promissory  note  is  a  written  promise  to  pay  money,  so  a 
bill  of  exchange  is  a  written  order  for  the  payment  of  money. 
And  it  has  been  said  that  it  must  contain  an  order,  or  direction, 
and  not  a  mere  request  as  of  a  favor.  (//)  But  it  is  difficult  to 
draw  a  line  between  some  of  these  cases. 

There  are  some  particulars  in  relation  to  damages,  protest, 
<fec.,  to  be  considered  hereafter,  in  which  the  law  of  bills  of  ex- 
change is  regulated  by  statute.  Even  here,  however,  the  statute 
is  little  more  than  a  confirmation  or  equalizing  of  custom.  In 
all  other  respects  the  law  of  bills  of  exchange  is  strictly  a  branch 
of  the  law  merchant,  lex  mercatoria,  invented  and  practised  by 
merchants,  and  adopted  and  sanctioned  by  courts  after  it  had 
become  the  known  usage  of  merchants,  and  because  it  had  be- 
come this  usage.  It  is,  therefore,  peculiarly  adapted  to  the  wants 
and  use  of  a  mercantile  community,  or  rather  of  that  mercan- 
tile public,  which,  existing  all  over  the  world,  by  their  mutual 
intercourse  and  the  relations  and  connections  growing  out  of  it, 
constitute  in  some  degree  one  community,  embracing  members 
of  various,  of  distant,  and  sometimes  even  of  liostilc  nations. 

The  bill  of  exchange  is  tiic  principal  instrument  for  the  trans- 
fer of  money  from  place  to  place.  In  this  respect,  it  is  greatly 
superior  to  the  promissory  note.  If,  for  example,  a  merchant  in 
New  York  owed,  for  goods  purchased,  one  thousand  j)Ounds  to 
a  merchant  in  London,  he  might  send  him  that  money  in  gold  or 
silver ;  or  he  might  find  some  one  in  New  York  to  whom  some 

{tj)  Sec  Little  u.  Slackford,  Moody  &  M.  171  ;  Kuff  r.  Webb,  1  Esji.  129. 


CH.  IV.]  BILLS   OF   EXCHANGE  —  WHAT   THEY   ARE.  58 

London  mcrcliant  owed  a  thousand  pounds,  and  might  give  him 
the  money,  taking  his  note  for  it  at  sixty  days ;  this  note  he 
might  send  to  his  London  creditor,  giving  him  the  name  of  tlie 
London  debtor  of  the  promisor  of  the  note ;  tlie  London  creditor 
miglit  take  the  note  to  the  London  debtor,  who  might  wish  to 
save  himself  the  trouble  of  sending  the  money  to  New  York,  and 
might,  therefore,  cash  the  note,  and,  when  his  New  York  creditor 
demanded  payment,  he  might  present  to  him  this  note  l)y  way 
of  set-off.  In  this  circuitous  and  inconvenient  way  both  debts 
would  be  paid,  and  no  money  be  sent  across  the  ocean  in  eitlicr 
direction,  one  debt  being  made  to  pay  the  other  debt.  But  the 
same  result  may  be  obtained  more  directly  and  conveniently  by 
means  of  a  bill  of  exchange.  Let  the  New  York  debtor,  whom 
we  will  call  A,  buy  for  a  thousand  pounds  in  dollars  a  written 
order  from  the  New  York  creditor  B,  addressed  to  the  London 
debtor  C,  requiring  him  to  pay  that  amount  to  the  order  of  A. 
Upon  this  A  indorses  an  order  to  C  to  pay  it  to  his  Loudon 
creditor  D,  and  transmits  it  to  D,  who  presents  it  for  payment  to 
C,  and,  receiving  his  money,  both  debts  are  paid. 

Such  an  order  would  be  a  bill  of  exchange.  It  would,  gener- 
ally, be  in  this  form.  "  New  York,  January  5,  1857.  Yalue  re- 
ceived, please  pay  to  A,  or  order,  one  thousand  pounds,  in  sixty 
days  after  sight,  on  account  of  your  obedient  servant,  B.  To  C, 
London."  Here  B  is  the  drawer ;  C  is  the  drawee ;  A  is  the 
payee.  As  soon  as  D  received  the  bill,  with  the  order  which  A 
indorses  upon  it  making  it  payable  to  him,  he  would,  with  all 
convenient  promptitude,  present  it  to  C  ;  firstly,  that  the  sixty 
days  after  sight  might  begin  to  run  ;  secondly,  that  he  might 
know  certainly  whether  C  would  pay  the  money  as  ordered. 
This  presentment,  therefore,  is  called  a  presentment  for  accept- 
ance ;  because  C  must  do  one  thing  or  the  other,  that  is,  he  must 
accept  the  bill,  and  this  he  usually  does  by  writing  across  the 
face  of  it  the  word  "  Accepted,"  with  a  date,  and  signing  his 
name  below  the  word  ;  or  he  must  refuse  to  accept  the  bill.  As 
soon  as  he  has  accepted  the  bill,  he  is  called  the  acceptor,  and 
Decomes  bound  absolutely  to  pay  it  according  to  its  tenor,  or  the 
tenor  of  the  acceptance,  to  the  payee  or  his  order.  The  payee 
may  then  indorse  the  bill,  in  like  manner  as  the  payee  of  a 
note  may  indorse  the  note,  and  acquire  the  same  rights  and 
incur  the  same  obligations.     The  drawee  may,  as  we  have  seen, 

5* 


5-4  NOTES   AND   BILLS.  [CH.  IV. 

become  an  acceptor ;  but  there  is  to  a  promissory  note  no  such 
party  as  eitlier  drawee  or  acceptor.  The  rights,  duties,  and 
obligations  of  all  of  these  parties  will  hereafter  be  fully  consid- 
ered. At  present,  we  would  lay  the  foundation  for  more  partic- 
ular mvestigation  by  the  following  general  statements. 


SECTION    II. 

OF    THE    OBLIGATIONS    OF    THE    PARTIES. 

The  maker  or  signer  of  a  promissory  note,  by  signing  and  de- 
livering it,  comes  at  once  under  an  absolute  obligation  to  pay  it 
according  to  its  tenor  to  any  holder  to  whom  it  may  be  due  at 
maturity ;  and  such  holder  must  look  to  the  maker  in  the  first 
place,  and  demand  it  of  him  in  the  manner  prescribed  by  law, 
before  he  can  look  to  any  other  party.     Not  so  with  the  drawer 

•C-*  or  signer  of  a  bill  of  exchange.     He  too  comes  under  an  obliga- 
tion to  pay  it ;  but  it  is  only  an  obligation  to  pay  it  if  the  drawee, 

->—  or  person  whom  he  orders  to  pay  the  money,  fails  to  pay  it.  For 
the  payee,  by  receiving  this  order,  undertakes  to  look  to  the 
drawee,  and  use  the  methods  which  the  law  prescribes  to  get  pay- 
ment from  him.  The  making  and  delivery  of  the  bill  put  the 
drawee  under  no  obligation  whatever  beyond  those  which  exist 
from  the  relations  between  him  and  the  drawer.  When  it  is  pre- 
sented to  him,  he  can  accept  it  or  not ;  but  if  he  docs  accept  it, 
then  lie  comes  at  once  under  an  absolute  obligation  to  pay  the 
bill  according  to  its  tenor.  It  is  obvious,  therefore,  that,  until  a 
bill  be  accepted,  there  is  no  party  to  it  who  holds  the  same  posi- 
tion, and  is  under  tlie  same  obligation,  as  the  maker  of  a  note ; 
and  that,  when  a  bill  is  accepted,  then  the  drawee,  wlio  has  now 
become  an  acceptor,  holds  the  place  of  the  maker  of  a  note,  and 
is  under  the  same  obligations.  But  the  drawer  or  signer  of  the 
bill,  l)y  tlie  act  of  drawing  and  delivery,  becomes  bound  to  pay 
it  if  tlie  acceptor  does  not.  While  the  acceptor  is  as  the  maker, 
the  drawer  is  therefore  as  the  first  indorser  of  a  note.  The 
drawer's  name  is  on  the  face ;  and  the  bill  cannot  be  called  in- 
dorsed, strictly  speaking,  until  the  j)ayee  indorses  it ;  and  then 
the  payee  is  apparently  the  first,  and  as  yet  the  only,  indorser; 
still  he  is,  in  point  of  legal  o)>ligation,  the  second  indorser.  for  tli^  • 


CII.  IV.]  INLAND    BILLS   AND    FOREIGN   BILLS.  55 

duties  of  the  respective  parties  stand  thus.  The  acceptor  is 
bound  absohitely  to  pay  the  bill ;  the  drawer  is  bound  to  pay  it 
if  the  acceptor  does  not ;  and  the  payee,  having  indorsed  the  bill, 
is  bound  to  pay  it  if  the  drawer  docs  not.  The  obligation  of  tho 
drawer  is  peculiar  in  another  respect  also.  He  is  not  only  bound 
to  pay  the  bill  if  the  acceptor  does  not,  but  he  is  bound  to  pay  it 
if  tho  drawee  refuses  to  accept  it.  By  such  refusal  there  is  no 
acceptor,  and  no  person  primarily  bound  to  pay  it.  But  that 
refusal  was  one  of  the  conditions  on  which  the  drawer  engages 
to  pay  it,  because  by  drawing  he  engages  that  the  drawee  shall 
accept  the  bill  on  presentment.  Therefore,  if  acceptance  be  re- 
fused, the  obligation  of  the  drawer  may  be  made  absolute  at  once 
by  due  notice,  and  if  the  payee  had  indorsed  the  bill  before  ac- 
ceptance, as  is  frequently  done,  then  his  obligation  is  unaffected 
by  non-acceptance,  and  he  is  still  bound  to  pay,  but  only  if  the 
drawer  does  not.  And,  as  the  result  of  all  this,  the  common 
phraseology  of  the  books  is,  that  the  acceptor  of  a  bill  is  as  the 
maker  of  a  note,  the  drawer  as  the  first  indorser,  and  the  payee, 
after  putting  his  name  on  the  back,  as  second  indorser.  And 
viewing  them  as  such  parties,  the  whole  law  of  demand,  notice, 
and  liability,  which  we  shall  discuss  in  future  chapters,  will  be 
found  to  belong  to  them. 


SECTION     III. 

OF    INLAND    BILLS    AND    FOREIGN    BILLS. 

There  is  a  distinction  in  respect  to  bills  of  exchange  which 
has  no  analogy  in  promissory  notes  ;  it  is  that  which  divides  them 
into  inland  (or  domestic)  and  foreign  bills ;  the  effect  and  im- 
portance of  this  will  be  seen  when  we  come  to  speak  of  protest 
and  damages ;  at  present  we  would  only  define  them.  In  Eng- 
land, from  which  the  distinction  came  to  iis,  a  bill  is  inland  when 
made  and  payable  within  that  kingdom  ;  but  if  either  made  or 
payable  abroad,  meaning  out  of  the  kingdom,  it  is  a  foreign  bill. 
Therefore,  a  bill  drawn  in  Ireland  and  payable  in  England,  is 
held  in  England  to  be  a  foreign  bill,  and  would  undoubtedly  be 
so  held  in  Ireland. (s)     If  drawn  in  England  on  a  person  abroad, 


[z)  Mahony  v.  Ashlin,  2  B.  «&  Ad.  478. 


56  NOTES   AXD   BILLS.  [CH.  IV 

but  payable  in  England,  and  accepted  payable  in  England,  it  has 
been  tbei'e  held  as  falling  within  the  definition  of  an  inland  bill, 
as  both  drawn  and  payable  in  England. («)  But  tiie  contrary  was 
decided  in  this  country  at  an  early  day. (6)  Tiiat  a  bill  drawn  or 
payable  in  a  foreign  country  would  be  held  in  this  country  to  be 
a  foreign  bill,  never  was  questioned  ;  but  it  was  at  one  time  much 
doubted  whether  a  bill  would  be  held  foreign  in  one  of  our 
States,  which  was  drawn  or  payable  in  another  of  these  States. 
But  this  question  is  now  well  settled  by  authority.  The  true 
criterion,  which  is  exclusively  to  determine  whether  the  bill  be 
foreign  or  inland,  would  be  found  in  the  further  question,  whether 
the  State  in  which  the  original  qiiestion  arises  has,  by  its  courts, 
full  and  complete  sovereignty  and  jurisdiction  over  it.  And  as 
our  States  are  so  far  foreign  that  the  municipal  law  of  each  one 
is  independent  of  that  of  every  other,  and  the  processes  of  courts 
do  not  go  from  one  State  to  another,  a  bill  so  drawn  must  be  held 
to  be  foreign.  When  the  question  came  before  the  Supreme 
Court  of  the  United  States,  under  the  statute  which  denies  to  ti\c 
District  or  Circuit  Courts  cognizance  of  certain  suits,  "  except  in 
cases  of  foreign  bills  of  exchange,"  (c)  it  was  held,  that  a  bill  of 

(a)  Amner  v.  Clark,  2  Cromp.  M.  &  R.  468.  In  this  case  tho  bill  was  drawn  in  Lon- 
don payable  to  the  order  of  the  drawer  in  London,  upon  a  merchant  residing  at  Brus- 
sels, and  accepted  by  him,  payable  in  London.  ILId,  that  it  was  an  inland  bill,  and 
must  be  stamped  as  such.  It  should  be  observed,  however,  that  the  question  in  this, 
ease  arose  under  the  English  Stamp  Act ;  and  it  is  not  certain  that  the  decision  would 
Iiave  been  the  same  if  the  question  had  depended  entirely  upon  the  law  merchant.  The 
counsel  for  the  plaintirt",  after  stating  that  the  stam[)  act  defined  a  foreign  bill  of  exchange 
as  a  bill  "drawn  in,  but  payable  out  of.  Great  Britain,"  said  :  "  It  may  be  that  there  is 
another  species  of  foreign  bill,  namely,  when  it  is  drawn  in  ICngland  upon  a  person  re- 
siding al)road,  and  accepted  by  him  payable  in  ICngland."  But  Bolland,  H.,  in  deliver- 
ing his  opinion,  said  :  "An  inland  bill  is  a  bill  drawn  in,  and  jiayable  in,  (ireat  Britain, 
which  this  bill  is." 

(//)  (iriinshawv.  Bender,  6  Mass.  1.57.  This  was  an  action  by  the  drawer  against  the 
ac<'cptor  of  a  bill  of  exchange.  The  bill  was  drawn  in  England  by  the  plaintitf,  an 
English  merchant,  upon  the  defendants,  a  commercial  house,  residing  and  doing  busi- 
ness in  Boston.  One  of  the  defendants,  being  in  England  at  the  time  the  bill  was  drawn, 
accepted  it  on  behalf  of  the  tirm,  "  ])ayable  in  London."  lldil,  that  it  was  a  foreign 
bill,  in  reference  to  the  measure  of  (himages.  Parsons,  C.J.  said  :  "It  is  manifest  that 
the  remedy  contemi)lated  by  the  [>artics,  in  the  event  of  the  bill  being  dishonored,  must 
be  sought  in  this  State,  where  the  acceptors  lived.  From  this  view  of  the  case,  the  in- 
strument mu-^t  be  considered  as  a  foreign  bill,  having  the  same  eilcct  as  if  the  payee 
had  stnt  it  to  Boston,  aTid  it  had  been  accepted,  payable  in  London  by  the  house  here  ; 
in  which  case  the  money  must  be  remitted  to  London  to  meet  the  bill  refjrn'd  to  tho 
drawer  after  acceptance." 

(c)   178U,  c.  20,  s  11,  1  U.  S.  Stats,  at  Large,  79. 


CH.  IV.]  INLAND   BILLS   AND    FOREIGN   BILLS.  67 

exchange  was  a  foreign  bill,  if  it  was  drawn  in  one  State  and 
payable  in  anotlier,  altliongli  the  drawer  and  payee  were  inhab- 
itants of  the  same  State. (r./)  The  State  courts  have  followed  this 
authority. (e)  A  case  in  New  York  contains  a  dictum  not  in  con- 
formity with  this  rule.(/) 

A  bill  may  be  in  fact  inland  having  regard  to  the  place 
where  it  was  drawn,  but  on  the  face  of  it  appear  to  be  foreign. 
Thus,  for  some  reason,  a  Boston  merchant,  temporarily  in  New 
York,  may  draw  his  bill  on  a  New  York  merchant,  payable 
in  New  York,  but  may  date  it  at  Boston.  Such  a  bill  would 
undoubtedly  be  held  to  be  foreign,  in  relation  to  innocent  third 
parties  who  became  interested  in  it  in  tiie  belief  that  it  was 
what  it  purported  to  be.(g')  As  between  the  original  pai-ties  and 
others  having  notice  of  the  circumstances  under  which  the  bill 
was  drawn,  the  question  would  be  more  douljtful  ;  but  we 
think  it  would,  even  then,  be  held  to  be  a  foreign  bill,  espe- 
cially if  it  appeared  that  it  was  drawn  in  that  form  for  no 
wrongful  purpose,  but  only  that  the  bill  might  conform  to  the 

(r/)  Buckncr  v.  Finlcy,  2  Pet.  586.  Washinr/lou,  J.,  in  delivering  the  opinion  of  the 
court,  said  :  "  We  are  all  clearly  of  opinion  that  bills  drawn  in  one  of  tiiese  Staters, 
upon  persons  living  in  any  other  of  them,  partake  of  the  character  of  foreign  hills,  and 
ought  so  to  be  treated.  For  all  national  purposes  embraced  l)y  the  Federal  (constitution, 
the  States  and  the  citizens  tiiereof  are  one,  united  under  t!ie  same  sovereign  authority, 
and  governed  by  the  same  laws.  In  all  other  respects  the  States  arc  necessarily  foreign 
to,  and  independent  of,  each  other.  Their  constitutions  and  forms  of  government  being, 
although  republican,  altogether  different,  as  are  tiieir  laws  and  institutions.  This  senti- 
ment was  expressed  with  great  force  by  the  President  of  the  Court  of  Appeals  of  Vir- 
ginia, in  the  case  of  Warder  v.  Arell,  2  Wash.  Vu.  298,  where  he  states  that,  in  cases 
of  contracts,  the  laws  of  a  foreign  country,  where  the  contract  was  made,  must  govern  ; 
and  then  adds  as  follows  :  '  The  same  principle  applies,  though  with  no  greater  force, 
to  the  different  States  of  America ;  for  though  they  form  a  confederated  government, 
yet  the  several  States  retain  their  individual  sovereignties,  and,  with  respect  to  their 
tnuniciiial  regulations,  are  to  each  other  foreign.' "  And  see  Lonsdale  v.  Brown,  4 
Wash   C.  C.  86,  1 5.3. 

(e)  Duncan  v.  Course,  3  Const.  R.  100;  Chenowith  v.  Chambcrlin,  0  B.  Mon. 
CO;  Cape  Fear  Bank  v.  Stincmetz,  1  Hill,  S.  Car.  44  ;  Phcenix  Bank  i<.  Hussey,  12 
Pick.  483  ;  Wells  v.  Whitehead,  15  Wend.  527  ;  Green  r.  Jack.son,  15  Maine,  136  ;  Hice 
V.  Hogan.  8  Dana,  133  ;  Halliday  v.  McDougall,  20  Wend.  81,  22  Wend.  264  ;  Brown 
V.  Ferguson,  4  Leigh,  37  ;  Carter  v.  Hurley,  9  N.  H.  558  ;  Freeman's  Bank  v.  Perkins, 
18  Maine,  292  ;  Warren  v.  Coombs,  20  Maine,  139.    See  Offit  v.  Vick,  Walker,  99,  104,  n. 

(/')  Miller  v.  Ilackley,  5  Johns.  375.  This  case  contains  only  a  diitum  of  Van  AV.s-s, 
^  ,  in  conflict  with  the  rule  stated  in  the  text.     See  Wells  c.  Whitehead,  15  Wend.  527. 

(<;)  The  contrary  was  decided  in  England  in  Steadman  v.  Dnhaniel,  1  C.  15.  888,  but 
that  decision  was  based  upon  the  stamp  act.  See  Lcnnig  i-.  Ralston,  23  Penii.  State, 
V37. 


58  NOTES   AND    BILLS.  [CH.  IV. 

drawer's  u^ual  course  of  business,  and  be  ^yllat  it  would  have 
been  liad  he  not  happened  to  be  at  the  time  in  New  York. 
The  converse  of  this  has  been  decided. (//) 

If  a  bill  be  signed  in  one  place  in  blank,  and  sent  to  another 
to  have  the  date,  the  names  of  the  drawee  and  payee,  and  the 
amount  and  the  place  where  payable,  inserted,  or  if  all  these 
are  written  in,  and  the  bill  then  sent  to  the  drawer  in  another 
place  for  his  signature,  the  bill  will  be  taken  to  be  made  where 
it  is  signed,  and  will  be  held  to  be  inland  or  foreign  accord- 
ingly.(i)  Every  bill  of  exchange  is,  prima  facie,  an  inland  bill ; 
and  a  party  who  would  hold  it  as  a  foreign  bill  must  allege  and 
prove  it  to  be  so.(j) 


SECTION    lY. 

OF   THE   SETS   OF   FOREIGN  BILLS. 

Op  inland  bills,  usually,  but  one  copy  is  made ;  but  of  foreign 
Dills,  usually,  three  copies  are  made,  wliich  together  form  what 
is  called  a  set  of  exchange.  Tlie  reason  of  this  is,  to  guard 
against  loss  or  question  in  case  of  miscarriage,  the  chances  of 


(h)  In  Strawbridge  v.  Robinson,  5  Oilman,  470,  it  appeared  that  the  bill  was 
dated  at  a  place  in  Illinois,  wliere  the  parties  resided,  hut  was  actually  drawn  in  Wis- 
consin, where  the  parties  happened  to  be  at  the  time.  Ildd,  that  it  was  an  inland 
bill. 

(/)  Tims,  wlicre  f)artners  resident  in  Ireland  signed  and  indorsed  a  copperplate  im- 
pression of  a  bill  of  exchange,  leaving  lilanks  for  the  date,  sum,  time  when  payable, 
and  name  of  the  drawee,  and  transmitted  it  to  B  in  England  for  liis  u>e,  who  filled  up 
the  blanks  and  negotiated  it ;  it  was  htlJ,  that  this  was  to  be  considered  as  a  bill  of  ex 
change  by  relation,  from  the  time  of  the  signing  and  indorsing  in  Ireland,  and  conse- 
quently that  an  English  stamj)  was  not  necessary.  An<l  Daijlci/,  J.  said :  "  Suppose 
tiie  person  .subscribing  his  name  as  drawer  had  died  wliilst  the  bill  was  on  its  i)assnge, 
and  afterwards  the  blanks  had  been  filled  up  and  the  bill  negotiatc<l  to  an  innocent 
indorsee  ;  I  should  think  that  in  that  case  the  representatives  of  the  party  sigtdng  the 
bill  would  have  been  liable.  This  sliows  that  when  the  wliole  is  filled  u)),  it  has  lefer- 
cnce  to  tilt!  time  of  the  signature,  which  in  tliis  case  was  made  in  Ireland."  Snaitli  v. 
Mingay,  1  Maule  &  S.  87.  And  sec,  to  the  same  ertect,  Lennig  n.  Italston,  23  Ponn. 
State,  1.'57.  So  where  a  bill  of  exchange  was  written,  and  the  acceptance  of  it  made, 
in  ICiigiand,  and  it  was  afterwards  transmitf<'d  to  tlie  drawer  abroad  for  his  signature, 
and  was  there  signed,  it  was  Itdd,  that  the  l)ill  was  a  foreign  one.  Boehin  v.  Cimpbc'l, 
Gow,  .53.     And  see  Crutchiy  v.  Maim,  .5  Taunt.  .O^O. 

{j)  Armani  v.  Castriijue,  l.T  M.  &  W.  44.'J. 


CH.  IV.]  THE   SETS   OF   FOREIGN   BILLS.  59 

the  bill  reacliing  in  due  season  the  party  to  whom  it  is  trans- 
mitted being  thus  increased  threefold.  And  the  facility  for 
presentment  thus  afforded  has  been  held  to  hasten  the  time 
within  which  a  bill  should  be  presented  for  acceptance. (/j)  Usu- 
ally, perhaps  always,  each  copy  of  the  set  is  designated  on  tht: 
face  of  it,  the  order  being,  "  Pay  this  first  of  exchange,  the 
second  and  third  being  unpaid,"  or,  "  Pay  this  second  of  ex- 
change, the  first  and  third  being  unpaid."  But  for  this  precau- 
tion the  drawer  might  be  held  by  an  innocent  purchaser  of  one 
copy,  without  notice  that  another  existed. (/)  Hence  the  custom, 
said  to  prevail,  or  to  have  prevailed,  in  Europe,  of  having  no 
such  caution  on  the  first  of  exchange,  and  on  the  second  saying 
only  "  the  first  being  unpaid,"  (m)  seems  unsafe,  for  the  first  then 
gives  no  notice  of  the  second  and  third,  and  the  second  gives 
no  notice  of  the  third.  But  an  omission  to  name  other  parts, 
obviously  by  mistake,  might  not  affect  the  rights  of  any  party. (?i) 
The  whole  of  the  set  constitutes,  in  law,  but  one  bill,  and 
therefore  payment  or  cancelling  of  either  copy  of  the  set  is  a 
dischai"ge  of  all.(o)     A  holder  of  either  copy  of  the  set  is  entitled 


(k)   Strakcr  v.  Graham,  4  M.  &  W.  721. 

(/)  In  \Yii<;lit  V.  McFall,  8  La.  Ann.  120,  whore  the  first  and  second  of  a  bill  of  ex- 
diange  were  Ijoth  accepted,  with  the  knowledge  and  consent  of  the  drawers,  and  with- 
out fraud  or  collusion  between  the  holders  and  acceptors,  it  was  held,  that  the  drawers 
were  liable  on  both. 

(m)  Marius  (4th  ed.),  p.  7. 

(n)  Bayley  on  Bills  (2d  Am.  ed.),  p.  24. 

(o)  Durkin  v.  Cranston,  7  Johns.  442  ;  Ingraham  v.  Gibbs,  2  Dallas,  134  ;  Miller  v. 
Hackley,  Anthon,  N.  P.  68  ;  Perreira  v.  Jopp,  10  B.  &  C.  450,  n.  (a).  The  case  of 
Holdsworth  v.  Hunter,  10  B.  &  C.  449,  was  decided  upon  special  circumstances.  The 
drawee  (who  was  also  payee)  of  a  foreign  bill  of  exchange  drawn  in  tliree  parts,  ac- 
cepted and  indorsed  one  part  to  a  creditor  to  remain  in  his  hands  mitil  some  other 
security  was  given  for  it ;  and  afterwards  accepted  and  indorsed  another  part  for  value 
to  a  third  person.  The  acceptor  substituted  another  security  for  the  part  first  accepted, 
whereupon  it  was  given  up  to  him.  Held,  that  under  these  circumstances  the  holder 
of  the  part  secondly  accepted  was  entitled  to  recover  on  the  bill  against  the  acceptor. 
Htld,  also,  by  Lord  Tenterden,  C.  J.  and  Parke,  J.,  that  the  acceptor  would  have  been 
liable  on  the  part  secondly  accepted,  even  if  the  first  part  had  been  indorsed  and  circu- 
lated unconditionally.  Lord  Tenterden  said  :  "  According  to  the  verdict  of  the  jury, 
the  delivery  of  the  bills  to  the  defendant's  father  was  not  absolute,  but  conditional,  and 
I  fhink  that  the  facts  of  the  case  justified  that  finding.  The  parts  first  accepted  cannot, 
therefore,  be  said  to  have  been  paid,  for  they  were  redeemed  by  the  substitution  of 
other  securities.  That  being  so,  what  was  there  to  prevent  the  defendant  from  putting 
in  circulation  another  part  of  the  bills  ?  But  I  am  inclined  to  go  further,  and  to  say 
that  the  j)laintiff"  would  have  been  entitled  to  recover,  even  if  the  transfer  to  the  father 


60  NOTES   AND    BILLS.  [CH.  IV. 

to  recover  thereon,  without  producing  the  otlier  copies,  or  ac- 
counting for  their  non-production.  If  another  copy  of  the  set 
has  already  been  paid,  and  another  person  is  the  proper  holder, 
and  has  given  notice  of  his  title  to  the  party  sued,  or  if  any 
other  ground  of  defence  exists,  which  displaces  the  prima  facie 
title  of  the  plaintiff,  the  defendant  must  show  it.(/?) 

On  the  continent  of  Europe,  it  seems  to  be  not  unusual  for 
an  original  bill  to  be  forwarded  for  acceptance,  and  in  the  mean 
time  a  copy  of  it  negotiated ;  and  it  is  said  to  be  necessary  that 
this  copy  should  be  marked  as  such,  stating  also  where  the 
original  is ;  but  we  have  no  practice  of  this  kind  in  this  country, 
and  it  is  said  not  to  exist  in  England. (7)  A  protest  may  some- 
times be  made  on  the  copy  of  a  bill.{r) 


SECTION    V. 

OF   THE   CERTAINTY   REQUISITE  IN   A   BILL   OF   EXCHANGE. 

As  a  bill  of  exchange  is  intended  to  operate  and  be  used  as 
an  instrument  of  business  and  as  a  representative  of  money, 
even  more  than  a  promissory  note,  and  in  order  to  do  this  it 
must  be  precise  and  definite  in  the  facts  whicli  it  states  and 
the  obligations  which  it  imposes  ;  therefore,  all  that  was  said, 
in  tlie  previous  cliaptcr,  of  the  various  certainties  essential  to  a 
legal  promissory  negotiable  note  applies  to  a  negotiable  bill  of 
exchange,  always  with  as  great,  and  in  some  respects  with  even 
greater,  force.  Although  on  these  points,  as  on  all  others,  the 
law  merchant  seeks  to  be  reasonable  rather  than  technical,  yet 
here  it  is  but  reasonable  to  be  very  exact.  It  will  be  seen, 
therefore,  as  we  go  on  presenting  the  law  of  negotiable  paper, 


h.iil  been  iibsoliite  and  uneomlitionaL  For  suppose  two  parts  of  a  foroi^;n  lull  come  to 
the  hands  of  the  drawee,  he  accepts  both,  and  indorses  first  one  part  to  A  an(i  after- 
wards the  other  part  to  B.  In  any  question  as  to  property  between  them,  A  init:lit  bo 
entitled  to  both.  Hut  the  question  here  is,  whether  the  acceptor  anil  indorser  siiall  l>o 
allowed  to  dcfi.'nd  himself  a^^ainst  the  liolder  of  the  one  part,  on  account  of  the  previous 
circulation  of  the  other  part.  I  am  not  aware  of  any  princi|)Ie  of  law  tipon  whiih  su' h 
a  defence  can  be  supported." 

(/))  Downes  (.-.  Church,  1.1  Pet.  20.");  Commercial  Bank  v.  Routh,  7  La.  Ann.  128. 

(7)   Hylcs  on  Bills,  ;jil. 

(r)   iJehers  v.  Harriot,  I  Show.  163. 


OH.  IV.]        C^iRTAINTY   REQUISITK   IN   A   BILL    OF   EXCHANGE.  61 

that  it  requires,  upon  all  matters  which  belong  to  the  repre- 
sentative character  of  this  paper,  or,  in  other  words,  as  to 
everything  which  makes  it  an  accurately  defined  contract  which 
must  be  executed  promptly  and  accurately  according  to  its  pre- 
cise tenor,  a  very  great  exactness.  And  it  is  perhaps  true 
that  the  courts  in  many  recent  cases  seem  to  be  taught,  by  the 
increasing  experience  of  the  mercantile  community,  rather  to 
increase  and  strengthen  this  exactness  than  to  relax  it  in  any 
way.  Whatever  favor  the  equities  of  a  particular  case  may 
require,  we  believe  that  the  general  purpose  of  the  law  of 
negotiable  paper,  and  the  general  good  of  a  community  among 
whom  the  use  of  this  paper  is  now  universal,  requires  at  least 
all  of  the  exactness  and  all  of  the  stringency  that  the  courts 
of  England  or  of  this  country  have  ever  applied  to  this  subject. 
In  addition  to  the  requisites  of  certainty  in  a  promissory  note, 
a  bill  of  exchange  must  be  reasonably  certain  as  to  the  person 
to  whom  it  is  directed.  An  instrument  which  is  not  directed  to 
any  one  is  not  a  bill  of  exchange. (.«)  But  where  an  instrument 
in  writing  possessed  all  the  other  requisites  of  a  bill  of  exchange, 
and  was  made  payable  at  a  particular  house,  it  was  held  suffi- 


(s)  Tlie  case  of  Regina  v.  Hawkes,  2  Moo.  C.  C.  60,  seems  to  have  held  a  different 
doctrine.  But  we  think  that  case  would  not  now  be  regarded  as  law.  In  Peto  v.  Rey- 
nolds, 9  Exch.  410,  Parke,  B.  said:  "I  cannot  help  observing,  that,  with  the  excep- 
tion of  Regina  v  Hawkes,  there  is  no  case  in  which  it  has  ever  been  decided  that  an 
instrument  could  be  a  bill  of  exchange  where  there  was  not  a  drawer  and  a  drawee. 
With  respect  to  that  case,  it  does  not  seem  to  me  entitled  to  the  same  weight  of  au- 
thority as  a  decision  pronounced  in  the  presence  of  the  pul)Iic,  and  on  reasons  assigned 
after  hearing  an  argument  in  public.  I  must  own  that,  but  for  that  case,  I  should 
have  had  no  doubt  that  the  law  merchant  required  that  every  bill  of  exchange  should 
have  a  drawer  and  drawee."  Aldtrson,  B.  said  :  "  With  respect  to  the  question 
whether  this  instrument  is  or  is  not  a  bill  of  exchange,  the  case  of  Regina  v.  Hawkes 
is  undoubtedly  in  point.  I  must  own,  however,  tliat  I  now  think  that  I  was  wrong  on 
that  occasion.  The  case  seems  to  have  been  decided  on  the  ground  that  Gray  v.  Mii- 
ner,  8  Taunt.  739,  governed  it;  and  the  fact  was  not  adverted  to,  that  Gray  v.  Milner 
may  be  thus  explained  :  that  a  bill  of  exchange,  made  payable  at  a  particular  place  or 
house,  is  meant  to  be  addressed  to  the  person  who  resides  at  that  place  or  house. 
Therefore,  in  that  case,  the  bill  was  on  the  face  of  it  directed  to  some  one ;  and  the 
court  held,  that,  inasmuch  as  the  defendant  promised  to  pay  it,  that  was  conclusive 
evidence  that  he  was  the  party  to  whom  it  was  addressed.  But  in  the  case  of  Rcina 
V.  Hawkes,  the  instrument  was  addressed  to  no  one."  Martin,  B.  said  :  "  It  seems  to 
me  that  it  is  absolutely  essential  to  tlie  validity  of  a  bill  of  exchange,  that  it  should 
have  a  drawer  and  a  drawee  ;  and,  except  for  the  case  of  Gray  i-  Milner.  I  should  have 
doubted  whctlicr  the  making  a  bill  payable  at  a  particular  place  was  a  sufficient  ad- 
v'ress."     See  also  Reynolds  v.  Peto,  11  Exch.  413. 

VOT..  I.  G 


62  NOTES   AND   BILLS.  [CH.  IV. 

cient,  upon  the  ground  that  it  must  be  considered  as  directed 
to  the  person  residing  at  that  house ;  and  the  defendant  having 
accepted  it,  this  was  regarded  as  an  acknowledgment  that  he 
was  the  person  to  whom  it  was  directed. (^)  The  soundness  of 
this  decision  has  been  questioned. (2/)  An  instrument  in  the 
common  form  of  a  bill  of  exchange,  except  that  the  word  at 
was  substituted  for  to  before  the  name  of  the  drawee,  has  been 
held  to  be  a  bill  of  exchange. (t;)  If  there  was  evidence  that  an 
instrument  was  so  drawn  for  the  purpose  of  deception,  there 
would  be  no  doubt  that  it  would  be  a  bill  of  exchange. (ir) 
And  it  is  not  absolutely  necessary  that  the  drawee  should  be 
a  different  person  from  the  drawer.  For  it  is  very  common 
for  a  man  to  draw  upon  himself;  and  it  has  long  been  held, 
that  such  an  instrument  is  a  good  bill  of  exchange. (a;)  But 
it  may  be  treated  as  a  promissory  note,  at  the  election  of  the 
holder.  (//)  The  same  principle  applies  where  a  copartnership 
carries  on  Imsincss  at  two  different  places,  and  one  establish- 
ment draws  a   bill  upon  the  other. (2)     So  where  a  duly  au- 


(0  Gray  v.  Milner,  8  Taunt.  739. 

(u)  See  Pcto  v.  Reynolds,  supra,  and  Davis  v.  Clarke,  6  Q.  B.  16. 

{v)  Shuttlcworth  v.  Stephens,  1  Camp.  407  ;  Regina  v.  Smith,  2  IMoo.  C.  C.  295. 

(w)  Rex  V.  Hunter,  Russ.  &  R.  C.  C  511  ;  Allan  v.  Mawson,  4  Camp.  115.  In  thLs 
last  case  Gihbs,  C.  J.  said  :  "  I  shall  leave  it  to  the  jury  whether  the  word  '  at,'  from 
the  manner  in  which  it  is  written,  was  not  inserted  for  the  purpose  of  deception,  and 
then  the  instrument  is  a  bill  of  exchange  in  point  of  fiict.     The  '  at'  being  struck  out, 

it  is  in  the  common  form  in  which  bills  of  exchange  are  drawn I  can  sec  no 

motive  for  drawing  an  instrument  in  this  form,  except  to  deceive  the  publip.  If  such 
instruments  have  been  common  iu  the  country,  they  ought  not  to  be  continued  or 
endured." 

(.r)  See  Starke  ;;.  Cheesman,  Carth.  509;  Dehcrs  v.  Harriot,  1  Show.  163  ;  Robin- 
eon  V.  Bland,  2  Buit.  1077.  In  Ilarvcy  v.  Kay,  9  B.  &  C.  364,  Bai/h;/,  J.  said  :  "  In 
Magor  V.  Hammond,  which  was  a  special  verdict  in  Common  Pleas  argued  before  the 
twelve  judges,  all  the  judges  were  of  opinion  that  an  instrument  might  be  a  bill  of  ex- 
change, though  the  drawer  and  drawee  were  the  same  person."  In  Davis  v.  Clarke,  6 
Q.  B.  19,  Pnllcson,  J.  said  :  ''  I  do  not  know  tliat  a  jiarty  may  not  address  a  bill  to 
himself,  and  accept,  though  the  proccc<ling  would  be  al)purd  enough."  Sec  also  Wildes 
r.  Siivage,  1  Story,  22  ;  Cunningham  v.  Wardwcll,  3  Fairf.  466. 

(y)  Roach  v.  Ostler,  1  Man.  &  R.  120  ;  l{ando!ph  v.  Parish,  9  Port.  Al\.  76. 

(z)  Thus,  in  Miller  7\  ThonTion,  3  Man.  &  G.  576,  it  was  lulil,  that  an  instrument  in 
the  form  of  a  bill  of  exchange,  drawn  upon  a  joint-stock  bank  by  the  manager  of  ono 
of  its  branch  banks,  by  order  of  the  directors,  miglit  be  declared  on  as  a  ])romissory 
note.  Tiiiddl,  C.  J.  said  :  "  It  is  an  instrument  drawn  by  one  of  several  partners,  di- 
recting that  a  sum  of  money  shall  be  paid  by  the  partnership  at  a  dilTerent  place. 
There  is  an  absence  of  tlic  circumstance  of  there  being  two  distinct  parties  as  dravver 
and  drawee,  whi"h  is  es.sential  to  the  constitution  of  a  bill  of  exchange.    That  being  bo, 


I 


CH.  IV.]        CERTAINTY   REQUISITE   IN   A   BILL    OF   EXCHANGE.  63 

thorized  agent  or  officer  of  an  incorporated  company  draws, 
in  behalf  of  the  company,  upon  the  trcasnrer,  cashier,  or  other 
■officer  of  the  comi)any  who  has  the  custody  of,  and  is  charged 
with  the  duty  of  disbursing,  tlie  company's  funds,  this  is  in 
substance,  it  should  seem,  a  draft  by  the  company  upon  itself ; 
and  may  be  treated  either  as  a  bill  of  exchange  or  a  prom- 
issory note. (a)  And  it  may  be  laid  down  as  a  general  rule, 
that  whenever  it  is  doubtful,  upon  the  face  of  an  instrument, 
whether  it  was  intended  as  a  bill  of  exchange  or  a  promissory 
note,  and  it  possesses  the  requisites  of  each,  it  may  be  treated 
as  either,  at  the  option  of  the  holder.  Thus,  if  an  instrument 
begin,  "I  promise  to  pay,"  &c.,  like  a  promissory  note,  and  be 
directed  like  a  bill  of  exchange,  it  may  be  treated  as  either. (6) 


the  only  alternative  is,  that  this  instrument  is  a  promissor\-  note,  and  is  properly  de- 
clared upon  as  such."  Erskine,  J.:  "  The  instrument  is  a  draft  by  the  company  upon 
that  brancli  of  it  which  is  carried  on  in  London.  It  is,  in  effect,  nothing  but  a  promis- 
sory note."  Maide,  J.  :  "  This  is  a  bill  drawn  by  the  whole  company,  acting  by  their 
directors,  upon  the  whole  company.  It  is  a  promise  made  by  one  partner,  acting  on 
behalf  of  the  company,  under  the  order  of  the  directors,  that  the  company  shall  pay. 
It  is  a  promise  made  by  the  company  at  Dorking  to  pay  in  London.  It  is,  therefore, 
in  effect,  a  promissory  note." 

(a)  In  Allen  v.  Sea,  Fire,  &  Life  Ass.  Co.,  9  C.  B.  574,  the  instrument  was  in  this 
form  :  "  Sea,  Fire,  Life  Assurance  Company.  To  the  cashier.  Thirty  days  after  date 
credit  Mrs.  A.  or  order  with  the  sum  of  £311,  9s.  %d.,  claims  per  '  Susan  King,'  ia 
cash,  on  account  of  this  corporation  " ;  —  and  was  signed  by  two  of  the  directors  of  the 
company.  Hdd,  to  be  a  promissory  note.  Wilde,  C.  J.  said  :  "  What  is  necessary  to 
constitute  a  promissory  note  ?  These  parties  issue  this  instrument,  importing  that  the 
company  promise  to  pay.  The  note  is  addressed  by  the  drawers  to  their  own  clerk, 
^ly  brother  Shee  treats  the  cashier  as  a  drawer  [drawee  ?  ].  But  at  the  trial  it  was  in- 
sisted, for  the  plaintiff,  that  the  instrument  was  precisely  what  we  think  it  is.  The 
company  indicate  that  they  mean  to  pay,  by  a  direction  to  their  officer  to  pay,  and 
they  point  out  to  whom  payment  is  to  be  made.  It  appears  to  me  that  the  instrument 
contains  all  that  is  essential  to  constitute  a  promissory  note"  And  see  Ellison  v.  Col- 
lingridge,  9  C.  B.  .570  ;  Hasey  v.  White  Pigeon  B.  S.  Co.,  1  Doug.  Mich.  193.  But  in 
the  Marion  &  M.  R.  R.  Co.  v.  Dillon,  7  Ind.  404,  Perkins,  J.,  delivering  the  opinion  of 
the  court,  said:  "If  a  man  draw  a  bill  or  order  directly  upon  himself,  pay.ible  imme- 
diately, it  is  his  promissory  note,  and  may  be  sued  on  accordingly.  In  such  case  he  is 
the  paj-er  as  well  as  drawer,  and  by  tiie  very  act  of  drawing  admits  he  is  to  pay,  and 
that  he  has  not  then  the  money  with  w-hich  to  make  payment.  But  where  the  debt  is 
due  from  a  company,  and  it  is  the  duty  of  one  officer  or  set  of  officers  to  allow  de- 
mands and  draw  upon  another  officer  who  has  the  custody,  and  is  charged  with  the 
duty  of  the  disbursement,  of  the  company's  funds,  for  payment,  such  order  must,  as  a 
general  rule,  be  presented  in  a  reasonable  time  for  payment."  See  further,  Varner  v. 
Noblcborough,  2  Greenl.  121  ;  Wctumjjka  &  C  R.  R.  Co.  v.  Bingham,  5  Ala.  657; 
Mobley  V.  Clark,  28  Barb.  390. 

[h]  Edis  V.  Bury,  6  B.  &  C.  435.    Lord  Tenterden  said  :  "  This  is  an  instrument  at 


64  NOTES   AND   BILLS.  [CH.  IV'. 

The  words  "^w  besoin,'^  or  "In  case  of  need  apply  to  A.  B.," 
are  sometimes  written  after  the  name  of  the  drawee.     This  is 


least  of  a  very  anibij^uous  character.  In  form  it  is  a  promissory  note,  for  it  contains  in 
terms  a  promise  to  pay  the  sum  mentioned  in  it ;  but  then  in  the  corner  of  it  there  is 
the  name  of  Grutherot,  and  it  appears  that  his  name  is  also  written  across  the  instru- 
ment. In  that  respect,  althouj^h  it  does  not  in  terms  contain  a  re^juest  to  Grutherot  to 
pay,  yet  it  resembles  a  bill  of  exchange.  It  is  an  instrument,  therefore,  of  an  ambigu- 
ous nature,  and  I  think  that  where  a  party  issues  an  instrument  of  an  ambiguous 
nature,  tlie  law  ought  to  allow  the  holder  at  his  option  to  treat  it  either  as  a  promissory 
note  or  a  hill  of  exchange.  That  being  so,  I  think  it  was  competent  to  the  plaintiff  in 
this  case  to  consider  this  as  a  promissory  note  ;  and  if  so,  the  notice  of  tlie  dishonor 
was  unnecessary."  Baylei/,  J. :  "I  think  that  this  was  a  promissory  note,  containing 
an  intimation  on  the  part  of  Bury  that  he  would  pay  at  Grutherot's  house  ;  and  1 
think  also,  that  where  a  pany  frames  his  instrument  in  such  a  way  that  it  is  ambigu- 
ous, whether  it  be  a  bill  of  exchange  or  a  promissory  note,  the  party  holding  it  is  enti 
tied  to  treat  it  either  as  one  or  the  other,  and  that  the  plaintitt' ought  not  to  be  defeated 
by  the  party  who  framed  the  instrument  being  allowed  to  say  that  it  is  a  bill  of  ex- 
change." //o//o//(/,  J  :  '■  It  seems  to  me  that  it  was  the  design  of  the  drawer  of  this 
instrument  to  hold  out  to  the  party  taking  it  that  he  might  treat  it  either  as  a  bill  of 
exchange  or  a  promissory  note.  Besides,  the  words  of  an  instrument  are  to  be  taken 
raost  strongly  against  the  party  using  them  ;  and,  therefore,  if  there  be  any  ambiguity 
in  the  words  of  this  instrument,  they  ought  to  be  construed  favorably  for  the  plaintiff, 
and  against  the  defendant  who  made  the  instrument.  Besides,  until  Grutherot  put  his 
name  to  this  instrument,  it  was  clearly  in  terms  a  promissory  note ;  and  having  been 
once  such,  the  fact  of  Ids  having  afterwards  put  his  name  to  it  as  acceptor  cannot  alter 
the  luiture  of  it."  Littleclale,  J. :  "  It  seems  to  me  that  this  was  a  promissory  note.  It 
begins  witli  the  words  '  I  promise ' ;  it  contains  a  promise  to  pay,  and  that  is  the  form 
of  a  promi>sory  note.  But  it  is  alleged  that  there  is  something  at  the  foot  of  the  instru- 
ment which  converts  it  into  a  bill  of  exchange  ;  a  bill  of  exchange,  liowever,  is  ad- 
dressed to  another  person,  and  contains  a  request  to  the  drawee  to  pay  the  same.  In 
order  to  make  this  a  bill  of  exchange,  the  words  '  I  promise  '  must  he  rejected  ;  and 
those  words  constitute  the  essential  difference  between  a  bill  of  exchange  and  a  promis- 
sory note.  I  think  that  they  ought  not  to  be  rejected.  Suppose  they  were  rejected, 
could  this  instrument  then  have  been  declared  upon  as  a  bill  of  exchange  before  Gru- 
therot accepted  it  ?  If  it  could  not,  then  it  was  not  a  bill  of  exchange  at  that  time  ; 
and  if  it  was  once  a  promissory  note,  Grutherot,  by  putting  his  name  to  it,  could  not 
make  it  a  bill  of  exchange." 

In  Llovd  V.  Oliver,  18  Q.  B.  471,  an  instrument  was  drawn  in  the  following  form  : 
"  Two  months  after  date  I  promi.se  to  pay  to  T.  K.  L."  (i)Iaintiff )  "  or  order,  £  99,l.os.' 
"11.  Oliver."  Underneath  was  written,  on  the  left  hand  of  the  instrument,  "J  E 
Oliver  "  (defendant).  Across  it  was  written,  "Accepted,  ,  ;■ -.■ihle  S.  &  Co.,  bankers, 
London,  K.  Oliver."  "  E.  Oliver  "  was  signed  by  dcfendani  VeW,  that  the  instru- 
ment might  be  sued  upon  as  a  bill  of  exchange  drawn  by  II.  0'  r  upon,  and  accepted 
by,  the  defendant.  Lord  C(i/»;)W/ said  :  "lam  ofopiiiicm  thui,  this  instrument,  even 
before  acceptance,  might  be  treated  as  a  bill  of  exchange  as  against  Henry  Oliver,  the 
drawer.  A*;  against  the  defendant,  it  is  clearly  a  bill  of  exchange.  It  is  directed  to 
John  Edward  Oliver;  that  must  mean  that  John  Edward  Oliver  is  requested  to  pay 
the  sum  mentioned  at  two  months  after  date,  although  there  are  no  ex]>ress  words  of 
request.  The  words  '  I  promise  to  pay  '  need  not  be  rejected  ;  they  are  to  be  cotisidered 
as  an  expression  of  what  otherwise  would  be  inijilied,  namely,  that  the  maker  will  ^ay 


OH.  IV.]        CERTAINTY   REQUISITE   IN   A   BILL   OF   EXCHANGE.  65 

for  the  purpose  of  pointing  out  some  person  to  whom  the  payee 
may  apply  in  case  the  drawee  refuses  to  accept  the  bill.(^a) 

if  the  acceptor  do  not.  The  instrument  is  ambiguous,  and  might,  no  doubt,  if  the 
plaintiff  cliose,  be  treated  as  a  promissory  note.  This  is  tlie  effect  of  the  decision  in 
Edis  V.  Bury."  Erie,  J.:  "As  against  the  defendant,  this  instrument  is  dciuly  a  bill 
of  exchange.  We  must  construe  the  language  of  it  according  to  known  mercantile 
usage.  It  has  always  been  the  custom,  in  drawing  bills  of  exchange,  to  place  the  name 
of  the  party  to  whom  the  bill  is  directed  in  that  part  of  the  instrument  where,  in  the 
present  case,  the  name  of  John  Edward  Oliver,  the  defendant,  is  placed.  According 
to  the  same  rule,  the  word  '  Accepted,'  followed  by  a  signature,  as  in  the  present  instru- 
ment, impliL-s  acceptance  of  the  bill  by  the  party  signing.  I  recollect  that  it  was  proved 
at  the  trial  that  the  instrument  had  never  been  out  of  the  hands  of  the  parties  to  it 
until  it  was  in  its  present  form  ;  so  tiiat  it  never  could  have  been  simply  a  promissory 
note,  as  has  been  suggested.  It  is  not  unjust  to  presume  that  it  was  drawn  in  this  form 
for  the  purpose  of  suing  upon  it,  either  as  a  promissory  note  or  as  a  bill  of  exchange." 
Crompton,  J. :  "  The  instrument  contains,  in  my  opinion,  a  clear  direction  to  John 
Edward  Oliver  to  pay,  and  a  clear  acceptance  by  him.  It  is,  therefore,  a  bill  of  ex- 
change. But  it  has  been  decided,  and  it  is  most  important  that  the  decision  should  not 
be  impeached,  that  equivocal  instruments  of  this  kind,  possessing  the  character  both  of 
promissory  notes  and  of  bills  of  exchange,  may  be  treated  as  either." 
(ia)  2  Pardes.,  n.  341,  348,  404,  421.     See  Leonard  v.  Wilson,  2  Cromp.  &  M-  &99. 


Vol.  I. — E 


6o  NOTES  AXD   BILLS.  [CH.  V. 


CHAPTER    V. 

OF  PERSONS  WHO  MAY  BE  PARTIES  TO  NOTES   OR  BILLS. 

There  can  be  no  other  rule  as  to  those  who  may  assume  the 
obligations  which  rest  on  the  makers,  drawers,  acceptors,  or 
indorsers  of  negotiable  paper,  than  that  which  is  derived  from 
their  nature  as  instruments  of  business ;  namely,  that  they  must . 
be  under  no  incapacity  to  transact  business.  This  incapacity 
may  be  total  or  partial ;  and  exactly  measured  by  it  is  their  ina- 
bility to  bind  themselves  as  parties  to  bills  and  notes.  Perhaps 
no  one  is  incapable  of  benefiting  by  a  bill  or  note  of  which  he 
is  promisee  or  indorsee.  An  infant,  or  married  woman,  or  bank- 
rupt may  certainly  receive  a  note,  although  payment  should,  gen- 
erally at  least,  be  made,  not  to  such  payees  in  person,  but  to 
those  who  have  authority  to  represent  them,  as  guardian,  hus- 
band, or  assignee. (c)  So  we  should  say  a  lunatic  might  receive 
a  note  ;  for  althougli  a  note  is  not  complete  until  it  is  delivered 
and  accepted,  and  a  person  wholly  wanting  in  intellect  cannot 
accept  anything,  yet  if  the  note  were  made  in  good  faith  and 
were  in  other  respects  unobjectionable,  and  if  it  were  for  the  ben- 
efit of  the  lunatic  and  laid  him  under  no  obligations  whatever,  it 
should  be  regarded  as  accepted  by  him,  or  by  some  one  for  him 
as  his  guardian  or  trustee.  Those  who  are  incapacitated  from 
effectually  making  or  indorsing  promissory  notes  and  bills,  in 
whole  or  in  part,  are  infants,  married  women,  persons  under 
guardianship,  lunatics,  alien  enemies,  and  bankrupts. 


(r)  IIolli<liiy  V.  Atkinson,  5  B.  &  C.  501  ;  Teed  v.  Elworthy,  14  East,  210 ;  Holt  v. 
Ward,  2  Stra.  937  ;  Warwick  v.  Bruce,  2  Maulc  &  S.  205,  6  Tuunt.  118  ;  Nif.htinjjale 
V.  Withington,  15  Mass.  272. 


CH   V.J  INFANTS.  67 


SECTION    I. 

OF   INFANTS. 

All  persons  are  infants,  in  law,  who  are  under  twenty-one 
years  of  age,  excc23ting  that  in  some  of  the  States,  at  least  for 
some  purposes,  a  woman  at  eighteen  is  held  to  be  adult,  (c/)  All 
infants  are  said  to  be  incapable  of  entering  into  contracts,  except- 
ing for  necessaries.  And  by  necessaries  are  meant,  not  only 
those  things  which  are  absolutely  essential  to  life  or  even  com- 
fort, but  such  other  things  as  are  wanted  by  them  and  arc  suited 
to  their  means  and  their  way  of  life.(e) 

This  incapacity  or  disability  is  intended  for  their  benefit  and 
protection  against  their  own  indiscretion,  or  the  knavery  of 
others.  Hence  the  exception  in  respect  to  necessaries  ;  for  these 
a  child  must  have.  Hence  too  the  old  distinction  between  the 
void  and  the  voidable  contracts  of  an  infant ;  those  being  held 
to  be  voidable  only  which  might  be  for  his  benefit,  while  those 
were  void  which  could  do  him  no  good.  But  this  distinction  we 
suppose  to  be  practically  obsolete ;  all  the  contracts  of  an  infant, 
not  in  themselves  illegal,  being  capable  of  ratification  by  him 
when  an  adult,  and  therefore  being  voidable  only ;  for  if  once 
absolutely  void,  no  ratification  could  give  them  any  force. (/) 


{d)  Sparhawk  v.  Buell,  9  Vt.  41  ;  Davis  v.  Jacquirn,  5  Harris  &  J.  100  ;  Ohio  Stat- 
utes, ch.  59  ;  Maine  Acts  of  1852,  ch.  291  ;  Laws  of  Missouri,  1849,  p.  67  ;  Hartley's 
Dig.  of  Texas  Laws,  art.  2420. 

[e)  See  1  Parsons  on  Cont.,  pp.  244-246.     And  see  Breed  v.  Judd,  1  Gray,  455. 

(/)  See  1  Parsons  on  Cont ,  pp.  243, 244.  So  far  at  least  as  regards  bills  and  notes 
to  which  infants  are  parties,  the  rule  now  prevails  universally,  that  they  are  not  abso- 
lutely void,  but  voidable  merely  at  the  election  of  the  infant.  See  Hunt  v.  ^lassey,  5 
B.  &  Ad.  902  ;  Gibbs  v.  Merrill,  3  Taunt.  307  ;  Williams  v.  Moor,  11  M.  &  W.  256  ; 
Harris  v.  Wall,  1  Exch.  122 ;  Reed  v.  Batchelder,  1  Met.  559;  Aldrich  v.  Grimes,  10 
N.  H.  194;  Edgerly  v.  Shaw,  5  Fost.  514  ;  Goodsell  v.  Myers,  3  Wend.  479  ;  Tafti-. 
Sergeant,  18  Barb.  320 ;  Cheshire  v.  Barrett,  4  McCord,  241  ;  Little  i'.  Duncan,  9  Rich. 
55.  But  see  McMinn  v.  Richraonds,  6  Yerg.  9.  It  has  sometimes  been  objected,  that, 
unless  the  bill  or  note  of  an  infant  bo  held  absolutely  void,  it  will  bind  him  in  the 
hands  of  a  bona  fide  holder  for  value.  But  this  proceeds  upon  a  mistake.  Tlie  inca- 
pacity of  a  party  to  a  bill  or  note  is  not  one  of  the  equities  which  cannot  be  set  up 
against  a  bona  fide  holder.  In  tliis  respect  a  subsequent  bona  fide  holder  stands  upon 
the  same  footing  as  the  payee,  and  he  must  inquire  as  to  the  capacity  of  the  parties  to 
the  paper,  at  his  peril.  So,  too,  although  it  is  said  that  the  bill  or  note  of  an  infant  is 
not  void,  but  voidable,  it  is  not  meant  by  this  that  it  is  valid  until  avoided,  but  merely 


68  NOTES   AND   BILLS.  [CH.  V. 

All  infant  may  bind  himself  for  necessaries ;  but  it  may  be 
doubted  on  some  authorities  whether  this  exception  would  go  so 
far  as  to  make  good  and  enforceable  his  promissory  note  for  tlie 
price. (g")  The  authorities  are  not  in  agreement  on  this  subject  ; 
but  on  principle  we  should  say  that  a  distinction  should  be  taker, 
between  a  negotiable  bill  or  note  and  one  not  negotiable.  For- 
merly a  simple  bond  given  by  an  infant  for  necessaries,  that  is,  a 
bond  for  the  payment  of  a  sum  of  money,  without  penalty  and 
without  interest,  might  be  valid,  but  not  one  which  provided 
either  for  a  penalty  or  for  interest.{/i)  Now,  no  bond  would 
probably  be  held  obligatory. (/)  If  a  note  were  given,  even  for 
necessaries,  it  has  been  repeatedly  held,  that  while  the  infant  was 
responsible  on  a  quantum  valebant  for  the  value  of  the  necessa- 
ries, his  note  for  the  amount  was  not  binding,  because  this  deter- 
mined that  amount  positively,  and  it  was  necessary  for  the  in- 
fant's effectual  protection  that  this  should  be  open  to  inquiry. (7) 

that  it  is  capable  of  ratification.  Until  ratified,  however,  it  has  no  validitj.  The  rula 
is  vei-y  accurately  stated  by  Gilchrist,  C  J  ,  in  Ed<rcrly  v.  Siiaw,  5  Fost.  514.  "The 
executory  contracts  of  an  infant  arc  said  to  be  voidable,  but  this  word  is  used  in  a  sense 
entirely  diftcrent  from  that  in  which  it  is  api)lied  to  the  executed  contracts  of  an  infant. 
In  the  latter  case,  the  contract  is  binding  until  it  is  avoided  by  some  act  indicating  that 
the  party  refuses  longer  to  be  bound  by  it.  In  the  former  case,  it  is  meant  merely  that 
the  contract  is  capable  of  being  confirmed  or  avoided,  though  it  is  invalid  until  it  has 
been  ratified."  See  also  the  excellent  criticism  upon  the  words  "  void  "  and  "  voidable," 
by  Bell,  J.,  in  State  v.  Richmond,  6  Fost.  232. 

(fj)  The  only  case  in  England  directly  upon  this  point  is  Williamson  v.  Watts,  1 
Camp.  5.52,  at  Nisi  Prius.  That  was  assumpsit  on  a  bill  of  exchange  against  the  ac- 
ceptor. The  defendant  pleaded  infancy.  The  plaintiff  replied  that  the  bill  was  accepted 
for  necessaries,  and  issue  thereon.  Upon  the  case  being  opened,  Sir  James  Mansfield 
said :  "  This  action  certainly  cannot  be  maintained.  The  defendant  is  allowed  to  bo 
an  infant ;  and  did  any  one  ever  hear  of  an  infant  being  liable  as  acceptor  of  a  bill  of 
exchange?  The  replication  is  nonsense,  and  ought  to  have  been  demurred  to."  So 
also  it  is  settled  in  England,  that  an  action  will  not  lie  against  an  infant  upon  account 
stated,  though  the  particulars  of  the  account  were  for  necessaries.  Trueman  v.  Hurst, 
1  T.  R.  40 ;  Bartlett  v.  Emery,  1  T.  R.  42,  n.  (a)  ;  Williams  v.  Moor,  11  AL  &  W.  25G. 
And  the  reasons  would  seem  to  hold  equally  in  the  case  of  a  promissory  note  or  bill  of 
exchange.  In  New  York,  too,  it  has  been  decided  that  a  imjotiable  note  given  by  an 
infant  for  necessaries  is  not  binding.  Swasey  v.  Vanderhcyden,  10  Johns.  .33.  And  in 
New  Hampshire,  McCrillis  v.  How,  3  N.  H.  348 ;  Conn  v.  Coburn,  7  N.  H.  368.  And 
in  Tennessee,  McMinn  i;.  Richmonds,  6  Yerg.  9.  And,  it  seems,  in  New  Jersey,  Fen- 
ton  i;.  White,  1  South.  100.  And  in  Indiana,  Henderson  v.  Fox,  5  Ind.  489.  As  to 
Kentucky,  sec  Beeler  v.  Young,  1  Bibb,  519. 

(h)  The  old  cases  upon  this  point  arc  collected  by  Sergeant  Manning,  in  a  note  to 
Harrison  v.  Func,  1  Man.  &  G.  550. 

(i)  Sec  Beeler  v.  Yoiuig,  1  BibI),  519  ;  McMinn  v.  Richmonds,  6  Yerg.  'i. 

(j)  See  cases  supra,  note  g.     The  reasoning  upon  which  these  cases  proceed  ia 


en    v.]  INFANTS.  69 

If,  however,  the  action  were  on  a  simple  promissory  note,  not  ne- 
gotiable, or  even  on  a  negotiable  note  which  had  not  been  nego- 
tiated, an  inquiry  into  the  consideration  might  be  made,  which 
would  seem  to  open  the  whole  question  ;  and  the  reason  for  de- 
nying the  validity  of  such  a  note,  while  admitting  a  liability  for 
the  value  of  tlie  necessaries,  might  seem  technical  rather  than 
substantial.  Not  so,  however,  if  the  note  were  negotiable  and 
negotiated  ;  for  now  it;  might  pass  for  value  into  the  hands  of  in- 
nocent tiiird  parties,  and  either  its  character  would  protect  it 
from  all  inquiry  into  consideration,  which  might  injure  the  in- 
fant, or  for  his  protection  this  inquiry  might  be  made,  and  then 
the  document  would  lose  tlie  chief  peculiarity  and  characteristic 
of  negotiable  paper. (t) 

well  stated  in  Mitchell  v.  >?eynolds,  10  Mod.  85.  It  was  there  said,  argunido,  "that 
*n  infant  could  not,  either  l>y  a  parol  contract  or  a  deed,  bind  himself  even  for  neces- 
saries in  a  sum  certain  ;  for  should  an  infant  promise  to  give  an  unreasonable  ])rice  for 
necessaries,  that  would  noi  bind  him ;  and  therefore  it  may  be  said  that  the  contract 
of  an  infant  for  necessaries,  quatenus  a  contract,  does  not  bind  him  any  more  than  his 
bond  would,  but  only,  since  an  infant  must  live  as  well  as  a  man,  the  law  gives  a  rea- 
sonable price  to  those  who  furnish  him  with  necessaries." 

(k)  It  was  expressly  decided  in  Swusey  v.  Vanderheyden,  10  Johns.  33,  that  an  ac- 
tion would  not  lie  on  a  negotiable  promissory  note  given  by  an  infant  for  necessaries, 
after  it  had  been  negotiated.  And  the  court  said :  "  A  negotiable  note  given  liy  an 
infant,  even  for  necessaries,  is  void.  This  we  consider  to  be  the  law,  and  it  is  the 
opinion  of  respectable  writers.  (Chitty  on  Bills,  20,  1  Camp.  553,  note.)  The  reason 
given  is,  that,  if  the  note  be  valid  in  the  first  instance  as  a  negotiable  note,  the  consid- 
eration cannot  be  inquired  into  when  it  is  in  the  hands  of  a  honajide  holder,  and  the 
infant  would  thereby  be  precluded  from  questioning  the  consideration.  For  the  same 
reasons  it  has  been  held  (1  T.  R.  40),  that  an  infant  cannot  state  an  account,  as  that 
would  preclude  him  from  investigating  the  items.  It  has  also  been  held  ( 1  Camp. 
552),  that  he  cannot  accept  a  bill  of  exchange  for  necessaries."  It  has  been  decided, 
however,  in  several  cases,  that  an  action  will  lie  on  a  note  given  by  an  infant  for 
necessaries,  while  it  remains  in  the  hands  of  the  original  payee,  though  it  be  negotiable 
in  form.  Thus,  in  Earle  v.  Reed,  10  Met.  387,  it  was  /icW,  that  a  negotiable  note  givea 
by  an  infant  was  not  void  in  the  hands  of  the  promisee  ;  and  in  a  suit  thereon  by  the 
promisee,  he  may  show  that  it  was  given,  in  whole  or  in  part,  for  necessaries,  and  may 
recover  thereon  as  much  as  the  necessaries  for  which  it  was  given  were  reasonably 
worth,  and  no  more.  That  was  an  action  of  assumpsit  on  a  promissory  note,  signed 
by  the  defendant  in  the  presence  of  an  attesting  witness,  and  payable  to  the  plaintiiF  or 
order.  It  appeared  that  the  defendant  was  an  infant  when  he  gave  the  note,  and  that 
it  was  given  for  necessaries.  The  action  was  not  brought  till  after  the  lapse  of  more 
than  six  years  from  the  time  when  the  cause  of  action  accrued ;  and  the  question  was, 
whether  the  note  was  sufficient  to  take  the  demand  out  of  the  operation  of  the  statute 
of  limitations,  under  the  provision  (R.  S c  120,  s.  4)  that  the  statute  of  limitations 
shall  not  apply  "  to  any  action  brought  upon  a  promissory  note,  which  is  signed  in 
the  presence  of  an  attesting  witness,  provided  the  action  be  brought  by  the  original 
payee,  or  by  his  executor  or  administrator."     And  the  court,  after  much  consideration. 


70  NOTES   AND    BILLS.  [CH.  V. 

All  [nfant  is  liable  for  his  torts  in  the  same  manner  as  an 
adult ;  but  it  seems  that  he  is  not  bound  by  a  bill  or  note  given 
in  satisfaction  for  a  tort.(/) 

It  is  now  quite  certain  that  an  infant  payee  or  indorsee  can,  by 
his  indorsement,  transfer  a  property  in  the  note  to  a  third  party 
as  against  all  parties  prior  to  the  infant.  For  though  the  note  is 
voidable  as  against  the  infant,  it  is  binding  upon  the  other  par- 
ties ;  and  the  indorsement  of  the  infant  is  good  until  he  avoids 
it,(wi)     And  it  seems  that  such  indorsement  may  be  made  by  the 

held,  that  it  was.  Shaw,  C.  J.  said  :  "  The  distinction  between  the  contract  which 
subsists  between  promisor  and  promisee,  on  a  note  payable  to  order,  but  not  indorsed, 
and  that  which  would  subsist  between  the  promisor  and  an  indorsee  after  an  indorse- 
ment to  a  third  person,  is  recognized  and  illustrated  in  the  case  of  Thurston  v.  Blan- 
chard,  22  Pick.  18.  The  difference  is  most  important,  as  it  applies  to  the  present  case. 
In  the  former,  suppose  it  a  note  given  on  the  sale  of  goods,  it  is  a  mere  simple  express 
contract  to  pay  the  price  of  the  goods,  and  is  itself  rescinded  by  anything  that  rescinds 
the  sale.  In  the  latter,  it  is  an  absolute  contract  to  pay  the  sum  stipulated,  in  which 
in  general  there  can  be  no  inquiry  respecting  the  consideration.  Under  these  views  wc 
consider  this  note,  in  the  hands  of  the  promisee,  as  the  simple  contract  of  the  defend- 
ant for  the  payment  of  money  ;  and  there  being  no  consideration  expressed,  the  infancy 
of  the  promisor  being  shown  is  prima  facie  a  bar  to  the  action.  But  as  the  considera- 
tion is  open  to  inquiry,  we  think  it  is  competent  for  the  plaintiti'  to  show  that  it  was 
given  for  the  price  of  necessaries,  in  which  ho  will  recover  only  so  much  of  the  note  as 
shall  appear  to  have  been  given  for  necessaries  at  their  fair  value,  without  regard  to 
the  price  stipulated  to  be  paid  by  the  minor.  This  being  a  note  valid  as  between  the 
parties,  we  think  it  is  saved  from  tlie  operation  of  the  statute  of  limitations,  by  the 
proviso  that  it  shall  not  apply  to  any  action  brought  upon  a  promissory  note  which  is 
signed  in  the  presence  of  an  attesting  witness,  if  brought  by  the  original  payee."  In 
Bradley  v.  Pratt,  23  Vt.  378,  an  action  was  brought  against  the  defendant  as  the 
maker  of  a  promissory  note,  payable  to  the  plaintiti' or  order.  It  ai)peared  that,  the 
defendant  being  indebted  to  one  L.  B.  for  necessaries,  and  L.  B.  being  indebted  to  the 
plaintiff,  the  defendant,  at  tlie  request  of  L.  B.,  gave  the  note  in  question  to  the  plain- 
tiff. It  was  /«/(/,  that  the  plaintiff  was  entitled  to  recover.  Rcdjield,  J.  said  :  "  If  it 
were  not  for  maintaining  the  unimpeachaltle  character  of  negotiable  ])ai)er  in  regard  to 
considerati(jn,  so  that  all  might  safely  take  it.  I  do  not  see  why  the  rights  of  infants,  in 
regard  to  acceptances  and  notes  negotiated,  might  not  be  saved  by  allowing  theni,  as 
an  exception  to  the  general  rule,  to  show  their  infancy,  and  then  for  the  plaintiff' to 
meet  it  by  j)roving  the  contract  to  have  been  given  for  necessaries.  But  this  has  not 
been  done,  and  probably  could  not  be  done,  without  too  great  an  infringement  of  the 
rules  of  law  in  regard  to  negotiable  paper  while  cm-rent."  It  seems  that  the  same  rule 
prevails  in  South  Carolina.  See  Dubosc  i'.  Wheddon,  4  McCord,  221 ;  Ilainc  v.  Tar- 
rant, 2  Hill,  S.  C.  400.     But  see  contra,  Bouehell  r.  Clary,  3  Brev.  194. 

(/)  Hanks  v.  Deal,  3  McCord,  257. 

(ill)  Taylor  v.  Crokcr,  4  Esp.  187;  Grey  v.  Cooper,  3  Doug.  C) ;  Jones  v.  Darch, 
4  Price,  .'{00.  And  see  Drayton  i;.  Dale,  2  B.  &  C.  293  ;  Jeune  v.  Ward,  2  Stark.  326, 
1  B.  &  Aiil.  6.'»3.  This  (juestion  was  well  considered  in  Nightingale  v.  Wilbington,  15 
Mass.  272,  where  Pnrkir,  C.  J.,  delivering  the  opinion  of  the  court,  said  :  "  That  an 
infant  may  indorse  a  negotiable  jiromissory  note,  or  a  bill  of  exchange,  made  ^>ayable 


CI  I.   V  ]  INFANTS.  71 

agent  or  attorney  of  the  infant,  or  at  least,  tliat  such  an  indorse 
ment  is  susce{)tiblc  of  ratification  by  the  infant  after  he  becomes 
of  age.(«) 

Acceptance  by  an  infant,  or  indorsement,  is  voidable  as  against 
himself,  in  tlie  same  way  that  the  making  of  a  note  or  drawing 
of  a  bill  would  be.  But  if  a  bill  drawn  upon  an  infant  were 
accepted  by  him  after  he  had  become  adult,  this  acceptance 
would  be  valid. (o)  It  has  been  held,  that  if  an  action  be 
brouglit  against  an  infant  for  goods  sold  for  trade,  and  a  rat- 
ification proved,  made  by  him  when  adult,  but  after  the  action 
was  commenced,  this  is  not  enough  ;  the  Court  distinguish- 
ing it  from  a  ratification  or  new  promise  made  after  suit, 
which  was  permitted  to  remove  the  bar  of  the  statute  of  lim- 
itations, and  one  of  them  saying  expressly  that  the  contract 
lor  goods  sold  for  trade  was  not  voidable,  but  void,  and  there- 
fore could   not   be  ratified,  although   it  might  be  the   ground 

to  him,  so  as  to  transfer  the  property  to  an  indorsee  for  a  valuable  consideration,  seems 
to  be  well  settled  in  the  law  merchant,  and  is  noways  repugnant  to  the  principles  of  the 
common  law.  Such  indorsement  is  not  like  one  made  by  s,  feme  covert;  for  a  note 
payable  to  her  becomes  the  property  of  her  husband ;  and  further,  her  acts  are  abso- 
lutely void,  whereas  those  of  an  infant  are  voidable  only.  It  would  be  absurd  to  allow 
one,  who  lias  made  a  promise  to  pay  to  one  who  is  an  infant  or  his  order,  to  refuse  to 
pay  the  money  to  one  to  whom  the  infant  had  ordered  it  to  be  paid,  in  direct  violation 
of  his  promise ;  and  it  would  impair  the  value  of  such  contracts  in  the  hands  of  infants, 
if  they  were  u.nable  to  raise  money  upon  them,  as  others  may  do.  Whether  an  infant 
may  avoid  an  indorsement  so  made,  and  oblige  the  promisor  to  pay  to  him,  is  a  ques- 
tion not  arising  in  this  case  ;  for  there  has  been  no  countermand  or  revocation  of  the 
order  to  pay,  which  is  implied  in  his  indorsement.  If  an  action  should  be  brought 
against  the  infant  as  indorser  for  tlic  default  of  payment  by  the  promisor,  without  doubt 
he  may  avoid  such  action  b}-  a  plea  of  infancy.  But  that  is  a  personal  privilege,  which 
none  liut  liimsclf  can  set  up  in  avoidance  of  any  contract  made  in  his  favor."  Hardy 
V-  Waters,  38  Maine,  450,  is  to  the  same  effect.     And  see  Burke  v.  Allen,  9  Fost  106. 

()i)  In  Whitney  v.  Dutcii,  14  Mass.  457,  where  one  of  two  partners  in  trade  was  an 
infant  and  the  other  of  full  age,  and  the  adult,  for  a  debt  of  the  copartners,  made  a 
promissory  note  in  the  nume  of  the  firm,  and  the  infant,  after  coming  of  full  age,  rati- 
fied it,  it  was  held  good  against  him.  Upon  the  authority  of  this  case  it  was  held,  in 
Hardy  v.  Waters,  38  Maine,  450,  that  an  infant  promisee  of  a  negotiable  note  might 
indorse  tlie  same  by  an  agent  or  attorney,  and  that  an  indorsement  so  made  is  valid 
until  avoided  by  the  infant  or  his  representatives.  But  Whitney  v.  Dutch  would  seem 
ro  be  an  authority  only  for  holding  that  such  an  indorsement  may  be  made  good  by 
ratification  after  the  infant  becomes  of  age  ;  not  that  it  is  good  until  avoided.  And 
we  are  not  certain  lliat  it  is  an  authority  for  so  much  as  this,  for  the  making  of  a  note, 
as  in  Whitney  v.  Dutch,  is  an  executory  contract ;  but  an  indorsement,  so  far  as 
it  operates  as  a  transfer,  is  a  contract  executed.  See  Semple  v.  Morrison,  7  T.  B. 
Mon.  298. 

(o)  Stevens  v  Jackson,  4  Camp.  164. 


72  NOTES   AND   BILLS.  [CH.  V. 

of  a  valid  new  promise. (;;)  But  if  the  decision  is  to  be  re- 
garded as  going  this  length,  it  cannot,  it  seems,  be  law.  For 
then  a  bill  or  note  executed  bj  an  infant  could  never  be  so 
ratified  as  to  support  an  action.  But  it  is  settled  by  repeated 
decisions,  not  only  that  this  may  be  done,  but  that  the  bill  or 
note  when  ratified  may  be  negotiated,  and  possesses  in  all  re- 
spects the  same  qualities  as  if  executed  by  an  adult,  (^y) 


(p)  Tliomton  v.  Illingworth,  2  B.  &  C.  824.  Baijley,  J.  said:  "  In  the  case  of  an 
infant,  a  contract  made  for  goods,  for  the  purposes  of  trade,  is  absolutely  void,  not  void- 
able only.  The  law  considers  it  against  good  policy  that  he  should  be  allowed  to  bind 
liimself  by  such  contracts.  If  he  makes  a  promise  after  he  comes  of  age,  that  binds 
him  on  the  ground  of  his  taking  upon  himself  a  new  liabilit}',  upon  a  moral  considera- 
tion existing  before  ;  it  does  not  make  it  a  legal  debt  from  the  time  of  making  the 
bargain."  Holioyd,  J. :  "  There  was  no  legal  right  capable  of  being  enforced  in  a  court 
of  law  at  the  time  when  the  action  was  commenced.  "Where  the  statute  of  limitations 
has  run,  a  new  promise  revives  the  debt  ah  initio,  and  that  is  equally'  the  case  whether 
the  promise  is  made  before  or  after  the  commencement  of  the  action.  Here  no  ground 
of  action,  capable  of  being  enforced  in  a  court  of  law,  existed  at  the  time  when  the 
action  was  brought ;  there  was  no  foundation  upon  which  the  action  could  rest.  The 
new  promise  was  the  'sole  ground  of  action,  and  not  the  revival  of  an  old  one."  Little- 
dale,  J. :  "  When  the  statute  of  limitations  is  relied  upon,  an  acknowledgment  admits 
tlie  perpetual  existence  of  the  debt,  and  therefore  it  suffices  whether  it  is  made  before 
or  after  the  bringing  of  the  action.  But  the  contract  of  an  infant,  under  such  circum- 
stances as  the  present,  being  void,  and  not  voidable,  the  promise  in  this  case  did  not 
prove  that  any  legal  cause  of  action  existed  at  the  time  when  the  action  was  com- 
menced." So  far  as  regards  the  point  decided,  this  case  has  generally  been  followed 
in  this  country.  Merriam  v.  Wilkins,  6  N.  H.  432  (overruling  Wright  ?;.  Steele,  2  N  11. 
51) ;  Hale  v.  Gerrish,  8  N.  H.  374  ;  Ford  v.  rhillii)s,  I  Tick.  202 ;  Goodridge  v.  Ross, 
6  Met.  487  ;  Thing  v.  Lil)bey,  16  Maine,  55.  See  contra,  Best  v.  Givens,  3  B.  Mon.  79.. 
But  the  dicta  of  some  of  the  judges  have  been  qualified  by  the  later  decisions  in  Eng- 
land. See  Williams  r.  Moor,  11  M.  &  W.  256;  Harris  v.  Wall,  1  Exch.  122.  And 
Bee  next  note. 

(7)  Hunt  V.  Massey,  5  B.  &  Ad.  902.  This  was  an  action  by  the  drawer  against  tlic 
acceptor  of  a  bill  of  exchange.  It  appeared  that  the  defendant  was  an  infant  wlien  he 
accepted  the  bill,  but  there  was  evidence  of  a  ratification  after  he  became  of  age.  It 
was  objected  {inter  alia)  for  the  defendant,  that  the  plaintiff  ought  to  have  declared 
specially,  and  not  on  the  acceptance;  because  the  defendant  "was  liable,  if  at  all,  not 
by  reason  of  his  acceptance  of  the  bill,  but  of  a  promise  made  after  Ik;  had  come  of 
age."  Taunton,  J. :  "  Where  a  voidable  contract  is  made  by  a  party  under  age,  and 
ratified  after  he  has  attained  his  full  age,  is  it  not  usual  to  declare  on  the  original 
promise  ?  The  first  promise  here  was  voidable  only.  As  soon  ns  it  wns  ratified,  it  be- 
came binding  ab  initio."  Patteson,  J. :  "  If  the  defendant  had  j)lendcd  infancy  spe- 
cially, the  plaintifl"  might  have  rejilicd,  that  after  he  iiad  attained  the  age  of  twenty- 
one  years  he  assented  to  and  ratified  and  confirmed  the  several  promises  in  the  decla- 
ration" Lord  Dinman:  "The  evidence  amoimted  to  a  ratification  of  the  original 
promise  to  pay,  according  to  the  tenor  and  c(fcct  of  the  bill  of  exchange,  and  might  bo 
d<  (land  on  accordingly."  In  Heed  v  Batcheldcr,  1  Met.  559,  it  was  laid,  iliat  a  nego- 
lialilc  note  made  by  an  infant  is  voidable,  and  not  void  ;  and  if  he,  after  ';om'\n/^  of  age, 


OH.  v.]  INFANTS.  73 

What  is  a  sufricicut  ratification  or  confirmation  is  sometimes 
a  difficult  question.  It  is  a  general  rule  that  a  promisor  cannot' 
avail  himseli"  of  his  mistake  of  the  law,  although  he  may  of 
liis  mistake  of  facts.  On  this  ground  it  might  be  said,  that 
if  an  adult  knew  that  a  note  was  made  by  him  when  an  infant, 
but  did  not  know  that  it  was  therefore  voidable  by  him,  and 
thereupon  ratified  it,  this  should  be  a  valid  confirmation.  There 
are,  however,  authorities  which  hold  that  the  confirmation  must 
be  made  by  the  adult  with  knowledge  that  he  is  not  liable  on 
the  note  without  such  confirmation. (>•)  It  seems,  even  if  this 
be  law,  that  such  knowledge  will  be  presumed,  in  the  absence 
of  any  evidence  to  the  contrary. (s) 

It  seems  also  necessary  that  the  recognition  of  the  note  should 
be  explicit,  and  a  declaration  made  that  the  promisor  considers 
himself  bound  to  pay  the  note.(/)  If  this  be  done  substantially, 
it  is  sufficient,  whatever  the  form  may  be  ;  as  if  one  says  the 
amount  is  due,  and  as  soon  as  ho  reaches  home  he  will  en- 
deavor to  get  the  money  and  pay  it.(w)  So  a  declaration  of 
uitent  to  pay,  together  with  an  authorizing  of  an  agent  to  pay 

promise  the  payee  that  it  sluiU  be  paid,  the  payee  may  negotiate  it,  and  the  holder  may 
maintain  an  action  in  his  own  name  against  the  maker.  That  was  an  action  on  a 
promissory  note,  made  by  the  defendant,  payable  to  Reed  &  Dudley  or  bearer,  and  by 
them  transferred  to  tlie  plaintiff.  Shaw,  C.  J.  said  :  "  The  question  is,  whether,  as 
this  was  a  negotial)le  note  payable  to  Reed  &  Dudley  or  bearer,  and  ratified  by  a  new 
promise  to  them  whilst  they  remained  the  holders,  they  could  make  a  good  title  by  de- 
livery to  the  plaintiff,  Robert  Reed,  so  as  to  enable  him  to  bring  the  action  in  his  own 
name.  The  new  promise  to  pay  was  made  to  Henry  Reed,  of  the  firm  of  Reed  & 
Dudley.  The  effect  of  this  was  to  ratify  and  confirm  the  contract,  and  give  it  the  same 
legal  effect  as  if  the  promisor  had  been  of  legal  capacity  to  make  the  note  when  it  was 
made.  This  made  it  a  good  negotiable  note  from  that  time,  according  to  its  tenor, 
transferable  by  delivery;  of  course,  when  transferred  to  Robert  Reed,  the  plaintiff,  he 
took  it  as  a  negotiable  note,  and  may  maintain  an  action  on  it.  This  deprives  the 
promisor  of  none  of  his  immunities  as  an  infant,  because  the  law  considers  him  as  hay- 
ing full  capacity  when  the  ratification  was  made,  and  without  such  ratification  no  action 
would  lie."  So  in  Edgerly  i'.  Shaw,  .5  Fost.  .514,  the  defendant  during  infiincy  made  a 
promissory  note  payable  to  one  Barker  or  order,  and  by  him  indorsed  to  the  jjlaintiff. 
Before  Barker  transferred  the  note,  the  defendant,  having  come  of  nge,  promised  him 
that  he  would  pay  it.  Hihl,  that  the  promise  to  pay  Barker  was  a  ratification  of  the 
note,  and  that  tlie  indorsee  might  avail  himself  of  it  in  an  action.  And  see  Goodsellp, 
Myers,  3  Wend.  479  ;  Lawson  v.  Lovcjoy,  8  Greenl.  40.5  ;  West  v.  Penny,  16  Ala.  186 ; 
Fant  V.  Cathcart,  8  Ala.  "2.5  ;  Cheshire?;.  Bairett,  4  McCord,  241. 

(r)   Ilinely  v.  Margaritz.  .3  Penn.  State,  428  ;   Ilarmer  v  Killing,  5  Esp.  102. 

(s)  Tafc  V.  Sergeant,  18  Barb.  320. 

{t)  See  Martin  v.  Mayo,  10  Mass   137. 

(w)  Whitney  v.  Dutch,  14  Mass.  457. 

VOL.   I.  7 


7-1  NOTES   AXD    BILLS.  [CH.  V. 

it,  who  however  does  iiotliing.(y)  So  a  promise  "  to  pay  it  as 
soon  as  I  can  make  it,  but  I  cannot  do  it  this  year  ;  I  under- 
stand the  holder  is  about  to  sue  it,  but  she  had  better  not,"  — 
was  hekl  to  be  such  an  affirmation  of  the  contract  as  would 
sustain  an  immediate  action ;  but  this  case,  we  think,  goes 
very  far  indeed. (i^)  If  the  promise  of  the  adult  be,  "All  that 
is  justly  your  due  shall  be  paid,"  this  will  sustain  an  action 
on  the  note,  and  the  note  will  put  the  defendant  to  the  proof 
of  any  injustice  of  which  he  would  avail  himself,  (.r)  Where 
the  adult  said  he  thought  the  note  had  been  paid  in  whole 
or  in  part,  but  that  his  uncle  would  be  there  the  next  month, 
and  the  note  should  then  be  settled  ;  this  went  to  a  jury  as 
evidence  of  a  ratification. (t/)  But  where  an  adult,  who  had 
given  his  note  during  infancy,  made  his  will,  in  which  he  di- 
rected hu  just  debts  to  be  paid,  it  was  held  that  his  executors 
were  not  liable  on  the  note.(z)  So,  where  the  adult  admitted 
that  he  owed  the  debt,  and  said  that  "  the  plaintiff  would  get 
his  pay,"  but  refused  to  give  his  note  lest  he  might  be  arrested, 
this  was  held  to  be  no  ratification  of  the  original  promise. (a) 
So  also,  when  the  adult  wrote  to  the  plaintiff,  "  I  consider 
your  claim  as  worthy  my  attention,  but  not  as  meriting  my 
first  attention." (6)  And  where  one  offered  in  writing  to  re- 
turn tlie  consideration  for  which  he  had  given  his  note  while 
an  infant,  and  added,  "  If  they  will  not  accept  of  the  above 
offer  I  will  have  to  pay  them,  I  suppose,  but  I  shall  do  so 
at  my  convenience,  as  it  will  be  nothing  less  than  a  free  gift 
on  my  part";  this  clearly  was  insufficient  to  avoid  the  plea 
of  infancy,  (c) 

It  is  settled  that  a  mere  acknowledgment  or  part  payment 
will  not  amount  to  a  ratification. ((^/)     But  where  an  infant  gave 


(t)  Orvis  V.  Kimball,  3  N.  II.  314.    And  sec  Hunt  v.  Massey,  5  B.  &  Ad.  902 
(w)  Bol)0  V.  Hiinsell,  2  Bailey,  114. 
(x)  Wri-^ht  V.  Steele,  2  N.  II.  51. 
((/)  Bay  I'.  Gunn,  1  Denio,  108. 
(;)   Sinitli  V.  Mayo,  9  Mass.  62. 

(a)  Hale  v.  Gcrrisli,  8  N.  II.  374. 

(b)  Wiliox  V.  lioath,  12  Conn.  550. 

(c)  Dinilap  V.  Halos,  2  Jones,  N.  C.  381. 

(f/)  Tiinipp  r.  Fieliler,  2  Esp.  628 ;  Iloliliins  v.  Eaton,  10  N.  II.  501  ;  Smith  (;.  Mayq 
9  Mass.  02  ;  Whitney  t;.  Dutch,  14  Mass.  457  ;  Thompson  i'.  Lay,  4  Pick.  48;  Hinelj 
V.  Margaiitz,  3  I'enn.  State,  428  ;  Benham  v.  Bishop,  9  Conn.  330. 


CH.  v.]  INFANTS.  75 

a  note,  and  after  coming  of  age  he  admitted  that  the  transaction 
was  just,  and  that  he  had  given  the  payee  a  watch  in  part  pay- 
ment, this  was  held  sufficient. (e) 

If  an  adult,  after  sufficient  notice  and  a  reasonable  delay  and 
opportunity,  continues  to  retain  property  which  he  might  restore, 
and  for  which  lie  gave,  when  an  infant,  his  promissory  note,  this, 
both  on  prevailing,  though  not  uniform,  authority,  and  on  good 
reason,  we  should  hold  to  be  conclusive  evidence  of  ratifica- 
tion.(/)  But  it  wonld  be  otherwise  if  the  property  for  which  the 
jiotc  was  given  was  disposed  of  by  the  infant  before  he  was  of 

Where  an  adult  was  sued  for  necessaries  received  by  him  while 
an  infant,  and  he  pleaded  in  bar  that  he  gave  his  note  for  the 
amount ;  this  was  very  properly  held  to  be  a  ratification,  and  in 
a  sTibscquent  action  on  the  note  he  was  not  allowed  to  set  up  his 
infancy  in  bar.(A)  We  should  be  willing  to  admit  that  a  sub- 
mission to  arbitration  by  the  adult  of  the  question  whether  he 
was  liable  or  not,  did  not  amount  to  a  ratification, (i)  but  we 


(e)  Little  v.  Duncan,  9  Rich.  55. 

(  /')  In  Aldricii  v.  Grimes,  ION.  H.  194,  where  an  infant  purchased  a  potash  kettle, 
irons,  leaches,  &c.,  and  gave  his  promissory  note  for  the  price,  it  being  agreed  by  the 
jiartics  that  he  might  try  the  kettle  and  return  it,  if  it  did  not  answer;  and  the  vendor, 
after  the  infant  became  of  age,  requested  him  to  return  it,  if  he  did  not  intend  to  keep 
it ;  but  he  retained  and  used  it  with  the  other  property  a  month  or  two  afterwards  ;  it 
was  held,  that  this  was  a  sufficient  ratification  of  the  contract,  and  that  an  action  might 
be  sustained  on  the  note.  And  see  Kobbins  v.  Eaton,  10  N.  H.  561.  So  where  an  in- 
fant purchased  a  yoke  of  oxen,  for  which  he  gave  his  negotiable  promissory  note  ;  and 
after  coming  of  age  he  converted  them  to  his  own  use,  and  received  their  avails  ;  it  was 
IielJ,  that  this  was  a  ratification  of  the  promise,  and  that  an  indorsee  of  the  note  was 
entitled  to  recover.  Lawson  v.  Lovcjoy,  8  Grccnl.  405.  And  where  an  infant  puix'hased 
land,  and  gave  his  note  for  the  purchase-money,  and  after  he  became  of  age  continued 
in  possession  of  the  land  and  promised  to  pay  the  note  ;  it  was  held,  that  this  was  a  rati- 
fication of  the  note.  Armfield  v.  Tate,  7  Ired.  258.  And  where  an  infant  gave  his 
note  for  a  horse,  payable  to  A  or  bearer,  and  after  he  was  of  age  kept  the  horse  and 
6old  iiim,  it  was  held  a  ratification.  Cheshire  v.  Barrett,  4  McCord,  241.  In  Thomas- 
son  v.  Boyd,  13  Ala.  419,  where  an  infant,  ten  days  before  he  attained  his  majority, 
purchased  a  note,  and  gave  in  payment  thereof  a  bill  drawn  by  him  upon  a  third  per- 
son ;  it  was  held,  that  his  omission  to  return  the  note  or  disaffirm  the  contract,  after  he 
was  of  age,  warranted  the  implication  that  he  intended  to  abide  by  the  contract,  and 
countervailed  the  defence  of  infancy.  But  in  Benham  v.  Bishop,  9  Conn.  330,  it  was 
held,  that  the  bare  retention  of  the  consideration  for  which  the  note  of  an  infant  was 
given,  after  his  coming  of  full  age,  was  not  a  ratification. 

(g)  Thing  v.  Libbey,  16  Maine,  55  ;  Bobbins  v.  Eaton,  10  N.  H.  561. 

(h)  Best  V.  Givens,  3  B.  Mon.  72. 

(i)  Benham  v.  Bishop,  9  Conn.  330. 


7fc  NOTES    AND    BILLS.  [CH.  V 

should  hold  the  promisor  bound  by  the  award  ot  such  arbitrators 
if  thej  decided  that  he  must  pay  the  note.  Where  one  said  he 
owed  the  payee,  but  could  not  pay  him,  and  wonld  try  to  get  l\is 
brother  to  be  bound  with  him,  this,  although  a  recognition  of  the 
debt,  is  neither  a  new  promise,  nor  a  ratification,  nor  confirma- 
tion of  the  note.(j) 

The  new  promise  or  ratification  must  be  made  to  the  promisee 
in  person,  or  to  his  agent  authorized  to  receive  it.(/L)  If  made 
to  third  parties  without  interest  or  agency,  or  even  to  one  who 
is  an  attorney  for  the  promisee  in  other  matters,  but  not  for  this 
purpose,  it  is  not  sufficient.  I) 

If  the  ratification  or  new  promise  is  conditional,  as  "  provided 
I  receive  a  certain  legacy,"  or  "  if  I  shonld  succeed  to  a  certain 
estate,"  or  "  if  I  recover  a  certain  sum  of  money,"  or  "  if  I 
draw  a  prize  in  a  certain  lottery,"  the  plaintiff  must  show  that 
the  condition  has  happened  or  been  complied  with.  So  if  the 
defendant  promised  to  pay  "  as  soon  as  he  should  be  able,"  the 
plaintiff  will  be  required  to  show  the  ability  of  tlie  defendant ; 
not,  however,  an  ability  to  pay  ivUhout  inconvenience,  for  evi- 
dence that  there  is  property  from  which  the  debt  might  be  paid, 
or  an  income  from  some  source  which  would  enable  tlie  party  to 
pay,  would  be  sufficient. (>?;) 

If  the  promise  be  to  pay  the  note  in  a  particular  manner,  as  by 
giving  a  note  of  a  third  person  for  part,  and  the  balance  in 
money,  this,  it  seems,  will  be  an  absolute  ratification  ;  and  upon 
failure  to  comply  with  such  special  promise,  an  action  may  be 
lu'ought  upon  the  original  notc.(»)  So  if  tlic  promise  be  in  the 
alternative,  as,  to  pay  the  note  in  labor  within  a  specified  time, 
or  else  in  money;  this  is  an  absolute  ratification,  and  if  the  la- 
bor be  not  performed  within  the  time  specified,  an  action  .will  lie 
upon  the  note.(o) 

ij)  Ford  V.  Phillips,  1  Pick.  202. 

{!:)  Thus,  where  an  individual  gave  a  note  durinj^  infancy,  and  afur  lie  was  of 
a^c  made  declarations  to  persons,  havinjj  no  interest  in  or  agcney  as  to  the  note,  of  an 
intention  to  pay  it,  it  was  hrlfl,  that  such  declarations  formed  no  such  evidence  of  a 
promise  of  payment  or  ratification  of  the  contract  as  would  render  such  person  lia'de. 
Hoii  V.  Underhill,  9  N.  H.  436.  And  sccGoodscll  v.  Myers,  3  Wend  479  ;  Bigelow 
V.  Grannis,  2  Hill,  120. 

(/)  Bijjjelow  1-.  Grannis,  2  Hill,  120. 

(m)  Thompson  v.  I.ay,  4  I'ick.  48;  Everson  v.  Carpenter,  17  Wend.  419. 

(n)  Taft  V.  Ser<,'eant,  18  IJarh.  320;  Stokes  v.  Brown,  4  Chand.  39.  See  Edgerly  r. 
Bhnw,  5  Fost.  .514. 

(o)  Edgerly  v.  Shaw,  5  Fost.  .514. 


CH.  v.]  INFANTS.  77 

In  England,  by  the  statute  of  9  Geo.  4,  c.  14,  s.  5  (Lord 
Tenterderi's  Act),  it  is  declared  "that  no  action  shall  be  main- 
tained wliereby  to  charge  any  person  upon  any  promise  made 
after  full  age  to  pay  any  debt  contracted  during  infancy,  or 
upon  any  ratification  after  full  age  of  any  promise  or  simple 
contract  made  during  infiincy,  unless  such  promise  or  ratifi- 
cation shall  be  made  by  some  writing  signed  by  the  party  to 
be  charged  therewith."  Under  this  provision  it  has  been  held, 
(and  in  this  respect  the  statute  has  made  no  alteration,)  that 
any  written  instrument  signed  by  the  party,  which,  in  the  case 
of  adults,  would  have  amounted  to  the  adoption  of  the  act 
of  a  party  acting  as  agent,  will,  in  the  case  of  an  infant  who 
has  attained  his  majority,  amount  to  a  ratification. (/;)  But 
we  very  much  doubt  the  correctness  of  this  rule.  In  a  later 
case,  a  learned  judge  has  more  correctly,  we  think,  defined  a 
ratification  "  to  be  a  consent  by  a  person  after  he  becomes  of 
full  age  to  be  liable  for  a  debt  contracted  during  infancy,  ex- 
pressing to  the  effect  that  he  is  willing  to  affirm  it  and  treat 
it  as  valid."  (^) 

If  an  infant  is  a  member  of  a  firm  at  the  time  when  a  note 
is  given  in  the  name  of  the  firm,  the  mere  fact  of  his  continuing 
in  the  firm  after  he  comes  of  age,  without  giving  any  notice 
of  his  intention  not  to  be  bound  iiy  the  note,  will  not  amount 
to  a  ratification.  (/•)  But  he  will  be  liable  on  notes  given  by 
the  firm  after  he  comes  of  age,  though  he  has  in  fact  ceased 
to  be  a  member  of  tiie  firm,  unless  he  has  given  notice  of  this 
fact.(5) 

If  an  infant  together  with  an  adult  make  a  joint  promissory 
note,  it  would  seem  that  in  England  the  payee  may  bring  his 
action  upon  it  against  the  adult  without  making  the  infant 
a  i)arty  defendant. (^)  But  this  has  been  denied  in  this  coun- 
try. (?/) 


(p)  Harris  i^.  Wall,  1  Kxch.  122. 

(7)   } far/in,  R  ,  in  Mawsoii  v.  Blane,  10  Exch.  206. 

(/■|   Crabtree  r.  May,  1  B.  Mon.  289. 

(s)   Gooflu  V.  Harrison,  5  B.  &  Aid.  147. 

(0  BurgL'Ss  V.  Merri'.",  4  Taunt.  468  ;  Chandler  v.  Parkes,  3  Esp  76  ;  Jaffrav  v. 
Frehain.  .5  Esp  47. 

('/)  Slocnin  r.  Hooker,  12  Barb.  563,  13  Barb.  536  ;  Wamsley  r.  LinJenberger,  2 
Rand.  478. 


78  NOTES   AND   BILLS.  [CH.  V 

SECTION    II. 

OF    MARRIED    WOMEN. 

By  the  common  law  of  England,  which  is  our  common  law, 
husband  and  wife  are  one  person,  and  the  husband  is  that 
person  ;  for  most  purposes  the  wife's  personal  existence  being 
merged  in  that  of  the  husband.  This  rule  is  qualified  some- 
what, in  this  country,  by  adjudication  ;  more,  however,  by  re- 
cent statutes  in  several  of  the  States. (y)  Indeed,  the  whole 
law  of  husband  and  wife  may  be  said  to  be  in  a  transition 
state  in  this  country.  The  reasons  for  the  old  law,  most  of 
which  depended  upon  the  feudal  system,  having  disappeared, 
there  seems  everywhere  a  willingness,  if  not  an  effort,  to  intro- 
duce new  principles,  better  suited  to  our  own  times  and  circum- 
stances. As  yet,  however,  the  common  law  may  be  said  to  be 
generally  in  force,  althougli  everywhere  with  some  qualification. 

A  married  woman  cannot  legally  make,  indorse,  or  accept 
notes  or  bills,  as  acting  for  herself.  (i(7)  Nor  does  a  divorce 
a  mensa  e.t  Ihoro  give  her  this  power  at  common  law  ;  [x)  but 
a  divorce  a  vinculo  wholly  annuls  the  marriage,  and  all  its 
incidents  and  disabilities.  Nor  has  her  signature  any  more 
force  because  she  represented  herself  to  be  unmarried. (/y)  Nor 
if  she  has  eloped,  and  lives  in  notorious  adultery. (~)  Nor  if 
she  lives  apart  from  her  husband,  and  has  a  separate  main- 
tenance secured  to  her. (a)  And  in  order  to  create  a  cliarge 
upon  the  separate  estate  of  a  married  woman,  tlie  intention 
to  do  so  must  be  declared  in  the  very  contract  which  is  the 
foundation  of  tlic  cliarge,  or  the  consideration  must  be  obtained 
for  the  direct  benefit  of  the  estate  itself.     Tlierefore,  where  p 

(y)   Sec  1  Parsons  on  Cent.  306. 

(w)  Bixrlow  V.  Bishop,  1  Eiist,  432,  3  Esp.  26fi ;  Cotes  v.  Davis,  1  Camp.  485 ;  Coon 
V.  Brook,  21  Barl).  546  ;  Howe  v.  Wildes,  34  Maine,  566  ;  Connor  v.  Martin,  1  Stra. 
516,  s.  c.  eited  in  llawlinson  v.  Stone,  3  Wilson,  5. 

(ar)  Lewis  v.  Lee,  3  B.  &  C.  291.  It  is  otherwise  in  Massncliusetts.  Dean  i\  Rich, 
irionrl,  5  Pick.  461. 

(y)  Cannam  v.  Farmer,  3  Exch.  098 ;  Lowell  v.  Daniels,  2  Gray,  161. 

(z)  Ilatchett  v.  Baddeley,  2  W.  Bl.  1079. 

(a)  Marshall  v.  Rutton,  8  T.  R.  545 ;  Hyde  v.  Price,  3  Ves.  437  ;  Lean  v.  Scha/«, 
2W.  Bl.  1195. 


CH.  v.]  MARRIED   WOMEN.  79 

married  woman  signed  a  promissory  note  as  surety  for  her 
husband,  and  intended  to  charge  her  separate  estate,  but  the 
note  contained  no  words  to  this  effect,  it  was  held  that  the 
estate  was  not  liable. (6)  Unlike  an  infant's,  her  promissory 
note  or  bill,  made  during  coverture,  is  so  utterly  void,  that 
her  promise  to  pay  it,  made  after  her  disability  has  terminated 
by  her  husband's  death,  will  not  operate  as  a  confirmation,  nor 
have  any  force,  unless  made  upon  a  new  consideration,  so  as  to 
be  binding  as  an  independent  promise. (c)  Nor  can  she,  like 
an  infant,  convey  a  good  title  to  a  third  party  by  her  indorse- 
ment. (<i)  But  if  she  gave  a  bill  or  note  for  money  lent  while 
married,  and  then  procured  a  separate  estate,  and  after  her 
husband's  death  promised  to  pay  it,  it  is  said  this  promise  will 
bind  her  and  her  executors. (e)  A  second  indorser  cannot  in 
an'  action  against  him  oil  the  bill  dispute  the  legal  capacity  of 
the  payee  to  indorse,  on  the  ground  that  she  was  a  married 
woman.  (/) 

(b)  Yale  v.  Dederer,  22  N.  Y.  450,  21  Barb.  286.  Sec  Bullpin  v.  Clarke,  17  Ves. 
365  ;  Stuart  v.  Kirkwall,  3  Mad.  387. 

(c)  Loyd  t;.  Lee,  1  Stra.  94  ;  Vance  v.  Wells,  6  Ala.  737,  8  Ala.  399  ;  Littlcfield  v. 
Shee,  2  B.  &  Ad.  811  ;  Meyer  v.  Haworth,  8  A.  &  E.  467  ;  Eastwood  v.  Kenyon,  11 
id.  438  ;  Watkins  v.  Halstead,  2  Sandf.  311.  But  see  Coward  v.  Hughes,  1  Kay  &  J. 
443  ;  Franklin  v.  Bcatty,  27  Missis.  347. 

{d)  Thus,  in  Barlow  v.  Bishop,  3  Esp.  266,  1  East,  432,  where  a  promissory  note 
was  given  by  tlie  defendant  to  a  married  woman,  whom  he  knew  to  be  sucii,  with  intent 
that  she  should  indorse  it  to  the  plaintiff  in  payment  of  a  debt  which  she  had  contracted 
to  him,  in  the  course  of  carrying  on  a  trade  on  her  own  account  by  the  consent  of  her 
husband,  it  was  held,  that  the  property  in  the  note  vested  in  the  husband  by  the  delivery 
to  the  wife,  and  that  no  interest  passed  by  her  indorsement  in  her  own  name  to  the 
plaintiff.  And  in  Savage  v.  Iving,  17  Maine,  301,  it  was  held,  that  a  note  made  pay- 
able to  a  married  woman  is  in  law  a  note  to  the  husband,  and  becomes  instantly  his 
property ;  and  her  indorsement  transfers  no  property  in  the  note.  So  where  an  action 
was  brought  by  the  indorsee  of  a  promissory  note,  payable  to  Susan  Connor  or  her 
order,  and  given  to  her  before  marriage  ;  which  note,  after  her  marriage  and  while 
covert,  she  indorsed  to  the  plaintiff;  the  court  were  of  opinion  that  the  feme  covert  could 
not  assign  the  note,  because  by  act  of  law  it  became  the  sole  right  and  property  of  her 
husband.  Connor  v.  Martin,  1  Stra.  516,  s.  c.  cited  in  Rawlinson  v.  Stone,  3  Wilson, 
5.  See  also  Shuttlesworth  v.  Noyes,  8  Mass.  229  ;  Commonwealth  v.  Manley,  12  Pick. 
73  ;  Cotes  v.  Davis,  1  Camp.  485.  It  will  be  seen,  therefore,  that  there  are  two  rea- 
sons why  the  indorsement  of  a  married  woman  is  void  :  1st,  Because  all  contracts  and 
conveyances  of  a  married  woman  are  void  on  account  of  her  incapacity  ;  2d,  Because 
a  note  given  to  a  married  woman  does  not  belong  to  her,  but  to  her  husband.  But  sea 
infra,  p.  87,  note  k;  for  the  limitations  to  this  doctrine. 

(e)  Lee  v.  Muggeridge,  5  Taunt.  36  ;  Vance  v.  Wells,  8  Ala.  399.  See  Franklin  v. 
Beatty,  27  Missis.  347.     See  1  Parsons  on  Cont.  359-361. 

(/)  Prescott  Bank  v.  Caverly,  7  Gray,  217. 


80  NOTES   AND   BILLS.  [CH.  V. 

A  married  woman  may,  however,  in  this,  as  in  most  transac- 
tions, act  as  agent  for  another,  and  so  she  may  act  for  her  hus- 
band. In  that  case  she  should  sign,  "  A  (the  husband)  by  B 
(the  wife)."  But  if  she  sign  "B  (the  wife)  for  A  (the  hus- 
band)," tliis  would  undoubtedly  be  sufficient.  And  if  she 
merely  signed  her  husband's  name,  without  adding  anythmg  to 
show  that  it  was  signed  by  an  agent,  perhaps  the  husband  would 
be  bound. (ir)  But  if  she  merely  sign  her  own  name,  without 
anything  to  indicate  that  she  is  acting  in  behalf  of  her  husband, 
this  presents  a  still  more  doubtful  question.  Indeed,  we  are  not 
aware  that  it  has  ever  been  held,  in  the  absence  of  any  subse- 
quent ratification,  or  other  special  circumstances,  tliat  such  a  sig- 
nature would  bind  the  husband.  Where  a  wife  indorsed  a  note 
in  tins  form,  it  was  held  that  it  did  not  pass  the  husband's  in- 
terest, although  the  note  was  in  form  payable  to  the  wife.(/i) 
And  where  a  husband  authorized  his  wife  to  purchase  a  piece  of 
land  and  "  give  notes  for  the  purchase-money,"  and  the  wife  pur- 
chased tlie  land  and  gave  a  note  for  a  part  of  the  purchase- 
money,  signed  with  her  own  name  merely,  it  was  held  that  the 

husband  was  not  liable  on  the  note.(i) 

^- 

{g)  We  are  not  aware  that  this  point  has  ever  been  expressly  decided.  The  recent 
case  of  AVuod  v.  Goodridge,  6  Cush.  117,  contains  some  well-considcrcd  dicta  against 
the  validity  of  such  a  signature.  The  precise  question  was  raised  in  Shaw  v.  Emery, 
38  Maine.  481 ;  but  it  was  unnecessary  to  decide  it,  there  having  been  a  subsequent 
raiifu-ation  by  the  husband.  See  1  Parsons  on  Cont.  95  -  97.  We  shall  advert  to 
diis  ])oint  again  when  we  come  to  speak  of  agents. 

(/()  Barlow  >;.  Bishop,  1  East,  432.  This  was  an  action  against  the  maker  of  a  prom- 
issory note,  made  payable  to  one  Ann  Parry  or  order,  and  by  her  indorsed  to  the  plain- 
tiff. It  appeared  that  Ann  Parry  was  a  married  woman,  carrying  on  trade  at  Bir- 
mingham in  her  own  name,  with  the  consent  of  her  husband ;  and  that  the  plaintiff, 
who  lived  in  London,  had  furnished  her  with  goods  to  the  amount  of  the  note,  dealing 
with  her  as  a  feme  sole;  that  the  plaintiff,  after  much  delay,  having  pressed  for  pay- 
ment, the  defendant,  with  a  view  to  serve  Mrs.  Parry,  gave  her  the  note  in  question 
with  knowli  dgc  of  her  being  married,  and  with  a  view  that  she  should  pay  it  over  to 
the  plaintiff,  in  order  to  stop  his  proceedings  against  her,  which  she  did  by  indorsing  it 
over  to  him.  It  was  held,  that  the  plaintiff  could  not  recover.  Lord  Keiiijou  said  :  "  It 
is  dear  that  the  delivery  of  the  note  to  the  wife  vested  the  interest  in  her  husband  ;  and 
as  he  perniitted  her  to  carry  on  trade  on  her  own  account,  and  this  was  a  transaction  in 
the  course  of  that  trade,  if  she  had  indorsed  the  note  in  the  name  of  her  husband,  I  am 
not  |>reparcd  to  say  tluit  tliat  would  not  have  availed  ;  as  many  acts  of  this  nature  may 
be  done  by  a  |)()wer  of  attorney  ;  and  the  jury  might  have  presumed  what  was  neces- 
sary in  favor  of  an  authority  from  her  husband  for  this  purpo.se.  But  the  indorsement 
being  in  her  own  name,  it  is  quite  impossible  to  say  that  she  could  i)ass  away  the  in- 
terest of  her  husband  by  it." 

(/)  Min.ird  v.  Mead,  7  Wend.  G&     Sutherlaud,  J.,  in  delivering  the  opinion  of  the 


CH.  v.]  MARRIED   WOMEN.  81 

But  it  is  a  familiar  principle,  that  a  man,  cither  in  his  general 
dealings  or  in  a  particular  transaction,  may  adopt  whatever  name 
he  chooses,  and  he  will  be  bound  accordingly.  If,  therefore,  a 
husband  should  put  his  wife's  name  to  a  note  given  on  his  own 
account,  he  would  be  considered  as  having  adopted  his  wife's 
name  pro  hac  vice,  and  would  l)e  liable  on  the  note.  Upon  the 
same  principle,  if  the  husband  clearly  authorizes  his  wife  to  give 
notes  on  his  account  and  sign  her  own  name,  and  she  does  so, 
he  will  be  liable. (7)  Therefore,  if  the  wife  executes  a  note  for 
her  husband,  in  his  presence,  and  signs  her  own  name  merely, 
with  his  knowledge  and  consent,  he  will  be  bound. (/c)     So,  if  the 

court,  s.iid  ;  "  The  note  was  not  so  executed  as  to  bind  the  defendant.  It  was  signed 
with  the  name  of  the  wife,  without  any  reference  whatever,  either  in  the  body  or  signa- 
ture, to  the  defendant,  and  without  purporting  to  be  signed  by  lier  as  the  agent  of,  or 
on  behalf  of,  her  husband.  Nothing  but  proof  of  a  special  authority  from  the  husband 
to  the  wife  to  sign  in  that  manner  wouUI  make  the  instrument  the  note  of  iier  Imsband. 
Her  authority  as  agent  merely  was  to  give  a  note  in  the  name  of  her  husband!  If  an 
agent  signs  his  own  name,  instead  of  the  name  of  his  principal,  as  a  general  rule  the 
principal  will  not  be  bound." 

( /)  Cotes  c.  Davis,  1  Camp.  48.5.  This  was  an  action  by  the  indorsee  against  the 
maker  of  a  promissory  note,  payable  to  "  Mrs.  Carter  or  order,"  and  indorsed  by  her  in 
her  own  name.  Mrs.  Carter  was  a  married  woman.  It  was  proved  that  when  the  note 
was  presented  for  payment  by  a  notary,  with  the  indorsement  u])on  it,  the  defendant, 
said  it  should  be  paid  in  a  few  days  ;  and  that  he  afterwards  asked  for  further  time, 
when  the  action  was  commenced  and  the  declaration  had  been  delivered.  Upon  these 
facts,  Gurroic,  for  the  defendant,  contended  that  no  title  to  the  note  passed  by  the  in- 
dorsement. I5ut  Lord  Elleiihorowih  said  :  "  The  husband  may  authorize  the  wife  to 
indorse  bills  of  exchange  or  promissory  notes  as  his  agent ;  and,  after  the  acknowledg- 
ments and  promises  of  the  defendant  in  this  case,  it  may  reasonably  he  presumed 
against  him,  that  Mrs.  Carter  had  authority  from  her  husband  to  indorse  the  note  in 
question."  (1  arrow :  "But  in  that  case,  the  indorsement  ought  to  have  been  in  the 
name  of  the  husband."  Lord  Ellenborow/h  :  "  We  may  fairly  carry  the  presumption 
one  step  further,  and  presume  that  the  husband  authorized  her  to  indorse  notes  in  the 
name  by  which  she  herself  passed  in  the  world.  The  defendant  is  now  estopped  from 
contesting  her  authority  for  this  indorsement."  And  sec  Prestwick  v.  Marshall,  7 
Bing.  56.5 ;  Prince  v.  Brunatte,  1  Bing.  N.  C.  435  ;  Lindus  v.  Bradwell,  5  C  B.  583  ; 
Stevens  v.  Beals,  10  Cush.  291  (disapproving  Savage  v.  King,  17  Maine,  301)  ;  Han- 
cock Bank  v.  Joy,  41  Maine,  568. 

(k)  Prestwick  v.  Marshall,  7  Bing.  565.  This  was  an  action  on  a  bill  of  exchange 
drawn  by  Lydia  Bickerstaff,  accepted  by  the  defendant,  and  indorsed  by  Lydia  to  the 
plaintiff.  It  appeared  that  the  drawer  of  the  bill  was  a  married  woman,  and  kept  a 
school,  at  which  the  defendant  had  placed  his  daughter.  The  bill  in  question  wa.s 
accepted  by  tlie  defendant,  at  the  request  of  Mrs.  Bickerstaff's  husband,  for  the  expense 
of  his  daughter's  education.  The  bill  was  drawn  by  the  husband,  and  signed  and  in- 
dorsed by  the  wife  in  his  presence  ;  and  it  was  put  in  that  form  at  the  defendant's 
request,  he  considering  that  his  engagement  was  with  the  wife  rather  than  the  husband. 
The  bill  was  afterwards  negotiated  to  the  plaintiff  by  the  husband.  The  court  held. 
Vol.  I  — F 


82  NOTES  AND  BILLS.  [CH.  V. 

wife  signs  in  this  form,  and  afterwards  the  husband,  upon  being 
informed  of  it,  ratifies  and  confirms  the  act,  this  will  be  equiva- 
lent to  a  prior  authority  to  sign  in  this  form,  and  will  bind 
him.(Z)      And  it  should  seem,  that  if  the  husband  carries  on 


that  the  plaintiff  was  entitled  to  recover.     The  same  point  was  decided  in  Menkens  v 
Peringhi,  17  Misso.  297. 

(I)  This  was  expressly  decided,  after  much  consideration,  in  Lindus  v.  Bradwell,  5 
C.  B.  583.  There  a  bill  of  exchange  addressed  to  the  defendant  by  the  name  of  "  Wil- 
liam Bradwell"  (his  true  name  being  William  David  Bradwell)  was  accepted  by  his 
wife,  by  writing  across  it  her  own  name,  "  Mary  Bradwell."  There -was  no  evidence 
of  any  express  authority  in  the  wife  so  to  accept  the  bill ;  but  on  its  being  presented  to 
the  husband  after  it  had  become  due,  he  said  he  knew  all  about  it,  that  the  bill  was  a 
millinery  hill  (for  which  the  husband  appeared  to  be  liable),  and  that  he  would  pay  it 
very  .shortly.  Held,  that  he  was  liable  as  acceptor.  Maule,  J.  said  :  "  I  think  the  de- 
fendant is  bound  by  the  acceptance  of  his  wife.  The  evidence  of  Henry  Lindus  shows 
that  the  defendant  represented  himself  to  be  a  person  bound  by  the  bill,  after  his  atten- 
tion had  been  particularly  called  to  it.  He  says  he  knows  all  about  it,  that  it  is  ac- 
cepted by  his  wife,  and  mentions  the  particular  transaction  out  of  which  it  grew,  and 
promises  to  pay  it  shortly.  The  irresistible  inference  from  this  is,  that  he  considers  the 
bill  as  one  that  he  is  liable  to  pay.  He,  in  effect,  says  that  his  wife  was  authorized  by 
him  to  accept  this  particular  bill  in  the  way  she  did.  At  any  rate,  the  conversation 
fairly  admits  of  that  inference.  He  sees  that  his  wife  has  written  licr  own  name  across 
the  bill,  and  recognizes  it  as  done  by  his  authority.  The  question  is,  whether  it  is 
competent  to  a  man  to  give  his  wife  such  an  authority.  Cotes  v.  Davis,  a  case  that  has 
been  since  recognized,  seems  to  be  a  strong  authority  upon  the  subject.  But,  upon 
principle,  it  seems  to  me  that  there  is  no  objection  to  the  plaintift''s  recovering  upon  this 
bill.  The  acceptance  is  in  writing,  and  therefore  satisfies  the  statute  1  &  2  Geo.  4,  c. 
78.  If  a  man  says  to  his  wife.  Accept  such  a  bill  drawn  upon  me,  in  your  name,  unless 
he  intends  to  be  bound  by  that,  he  means  nothing.  Unless  such  an  acceptance  operates 
to  charge  him,  it  has  no  operation  at  all.  The  defendant  clearly  meant  to  bind  him- 
self, if,  in  point  of  law,  he  could  do  so.  It  is  said  that  a  drawee  cannot  bind  himself 
otherwise  than  by  writing  his  name  on  the  bill.  But  suppose  the  drawee,  with  his  own 
hand,  accepts  the  bill  by  writing  another  name  across  it,  will  he  not  be  liable  1  Here 
the  defendant  has,  by  the  hand  of  his  wife,  written  '  Mary  Bradwell '  on  the  bill.  If  he 
had  done  that  with  his  own  hand,  it  clearly  would  have  been  his  own  acceptance ;  and 
I  know  of  no  rule  of  law  that  makes  such  an  authority  void.  It  is  difficult  to  say, 
that,  if  the  defendant  had  written  his  true  name,  William  David  Bradwell,  across  the 
bill,  that  would  not  have  been  an  acceptance  that  would  bind  him  ;  and  yet,  inasmuch 
as  that  would  not  be  the  name  in  which  it  was  addressed,  if  the  argument  of  the  defend- 
ant's counsel  is  well  founded,  he  would  not  he  liable.  I  admit  that  nobody  but  the 
defendant  could  accept  this  bill,  so  as  to  charge  him  ;  but  he  has  accepted  it  by  the 
hand  and  in  the  name  of  his  wife ;  and  that,  I  think,  is  a  sufficient  acceptance  to  bind 
him."  Cresswell,  J.  said :  "  The  jury  must  be  assumed  to  have  found  here,  that  the 
wife  had  authority  to  accept  this  bill ;  and  as  the  defendant,  by  his  subsequent  conduct, 
showed  that  he  was  satisfied  with  the  mode  in  which  the  authority  had  been  exercised, 
wc  must  likewise  assume  that  tlu"  jury  also  found  that  he  authorized  her  to  bind  him  in 
that  particidar  way.  It  is  by  no  means  an  unusual  thing  for  a  bill  of  exchange  to  be 
drawn  iijion  persons  trading  under  a  style  that  corresponds  with  the  name  of  no  one 
member  of  the  existing  firm  ;  and  yet  bills  so  drawn  and  so  ficccpted  arc  perfectly 


CH.  v.]  MARRIED   WOMEN.  83 

business  generally  in  his  wife's  name,  and  authorizes  her  to  give 
notes  for  him  in  the  course  of  such  business,  this  will  render  him 
liable  on  notes  so  given,  and  signed  with  the  wife's  name.(m) 
And  if  a  woman  holds  a  note  at  the  time  of  her  marriage,  and 
afterward  indorses  it  in  her  maiden  name,  this  will  pass  the  in- 
terest of  the  husband,  if  the  circumstances  of  the  case  be  such 
as  to  warrant  the  presumption  that  the  indorsement  was  so  made 
with  his  authority  and  assent. (w) 

In  order  to  hold  the  husband  on  a  bill  or  note  executed  by  his 
wife  as  his  agent,  the  wife's  authority  must  be  very  clearly 
proved. (o)  It  will  not  be  sufficient,  it  seems,  to  show  that  the 
wife  carried  on  trade  or  business,  and  purchased  goods  on  credit, 
with  the  knowledge  and  consent  of  her  husband.  For  he  may 
be  willing  to  be  answerable  for  the  price  of  goods  purchased  on 
credit  by  his  wife,  for  the  purpose  of  carrying  on  the  business  in 
which  she  is  engaged,  so  long  as  it  is  done  in  such  a  manner  that 
he,  if  she  be  defrauded  or  imposed  on  in  the  purchase  of  the 
goods,  shall  not  be  precluded  from  showing  the  fact,  as  a  defence 
against  the  payment  for  them.  But  if  she  be  allowed  to  pur- 
chase goods  on  credit,  and  give  negotiable  bills  or  notes  for  the 
payment  of  them,  he  loses  this  protection.  For  the  moment  that 
such  paper  comes  into  the  hands  of  a  bona  fide  holder  for  value, 
the  husband  becomes  absolutely  bound  for  the  payment  of  it  at 
maturity,  however  fraudulent  the  transaction  may  be  for  and  on 
account  of  which  the  paper  was  given. (/?)  And  though  a  trades- 
man cannot  write,  and  his  wife  write  for  him  whatever  is  requi- 
site in  his  trade,  he  will  not  be  liable  on  a  bill  or  note  signed  by 
her  in  his  name,  unless  there  is  some  evidence  that  it  was  signed 
by  her  in  respect  of  his  trade. (^)     If  a  husband  authorize  his 

good.  So  liere,  the  bill  having  been  accepted,  and  in  this  form,  by  the  authority  of  the 
defendant,  he  is  clearly  liable  upon  it." 

(in)  Abbott  V.  Mackinley,  2  Miles,  220. 

[n]  Miller  v.  Delamater,  12  "Wend.  433. 

(o)  Goldstone  v.  Tovey,  6  Bing.  N.  C.  98. 

(p)  Reakert  v.  Sanford,  5  Watts  &  S.  164.     See  Krebs  v.  O'Grady,  23  Ala.  726. 

[q)  Smith  v.  Pedley,  Bayley  on  Bills,  2d  Am.  ed.,  p.  42.  In  an  action  by  the 
indorsee  of  a  note  against  defendant  as  maker,  it  appeared  that  defendant  could  not 
Trite,  that  his  wife  wrote  for  him  whatever  was  requisite,  and  tliat  this  note  was  signed 
by  the  wife  in  his  name ;  but  there  was  no  evidence  that  the  note  was  given  on 
account  of  any  concerns  of  the  husband  ;  it  was,  however,  left  to  the  jury  to  pre- 
sume it  was  given  for  the  husband's  concerns ;  and  the  jury  found  for  the  plaintiff. 
But  on  a  rule  nisi  for  a  new  trial,  the  court  thought  there  was  nothing  to  warrant  such 
presumption  by  the  jury,  and  a  new  trial  was  granted. 


84  NOTES   AND    BILLS.  [CH.  V. 

wife  to  draw,  accept,  and  indorse  bills  in  his  name,  she  cannot 
delegate  this  authority  to  another.  Delegatus  non  potest  dele- 
gare. But  she  may  direct  another  person  to  write  her  husband's 
name  for  her,  in  her  presence. (r) 

Although  a  note  given  by  a  wife  to  her  husband  is  of  itself 
altogether  void,  yet  if  the  husband  indorse  it  over,  it  is  valid  as 
between  this  or  a  subsequent  indorsee  and  the  husband. (6-) 

A  woman  may,  under  some  circumstances,  be  a  sole  trader. 
As  if  her  husband  is  an  alien,  and  has  not  been  in  this  country. (<) 
Or  if  imprisonment  for  crime  or  desertion  have  restored  to  her, 
quasi,  the  rights  of  a  single  woman,  (w)     The  rule  on  this  point 


(r)  Lord  v.  Hall,  8  C.  B.  627.  In  this  case,  upon  an  issue  as  to  the  indorsement  of 
a  promissory  note  by  J.  S.,  it  was  proved  that  the  wife  of  J.  S.  had  the  general  man- 
agement of  his  business ;  that  she  was  in  the  habit  of  drawing:,  accepting,  and  indors- 
ing bills  and  notes  in  his  name ;  and  that  the  name  of  J.  S.  was  indorsed  upon  tlie  nolo 
in  question  by  his  daughter,  by  the  direction  and  in  the  presence  of  her  mother,  by 
whom  the  note  was  afterwards  handed  to  the  plaintiff.  Held,  that  it  was  a  question  of 
fact  for  the  jury,  whether  the  indorsement  so  made  was  within  the  scope  of  the  wife's 
authority;  and  that  the  evidence  warranted  them  in  concluding  that  it  was. 

(s)  Haly  r.  Lane,  2  Atk    181.     See  Knox  v.  Keeside,  1  Miles,  294. 

(t)  Kay  V.  Duehesse  de  Pienne,  3  Camp.  12.3.  See  1  Parsons  on  Cont.  306,  n.  (c). 
In  M' Arthur  v.  Bloom,  2  Duer,  151,  the  defendant,  being  .sued  as  the  maker  of  two 
promissory  notes,  pleaded  coverture.  It  appeared  that  she  was  a  native  of  Prussia, 
but  had  lived  in  New  York  for  more  than  seven  years;  and  during  that  time  had  carried 
on  l)usine-;s  in  her  maiden  name,  as  a  feme  sole.  It  also  appeared  that  her  husband,  to 
whom  she  had  been  married  more  than  twenty  years,  had  continued  to  live  in  Prussia, 
and  by  the  law  of  that  country  could  not  leave  the  kingdom  without  the  exjiress  per- 
mission of  the  government.  Held,  that  the  defendant,  under  these  circumstance.^, 
might  justly  be  considered  and  treated  as  a  feme  sole,  and  that  the  plaintiffs  were  there- 
fore entitled  to  recover.  Campbell,  J.  said  :  "  It  would  be  difficult  to  distinguish  tiiis 
case  from  that  of  Gregory  v.  Paul,  1.')  Mass.  31,  except  in  that  case  it  appeared  that  tlio 
husband  had  deserted  the  wife  in  England,  while  in  this  case  the  reasons  of  the  separa- 
tion, and  of  the  wife  assuming  her  maiden  name,  do  not  appear.  There  is  in  the  case 
before  us,  however,  another  fact,  which  may  be  considered  of  importance.  It  is,  that, 
by  the  laws  of  Prussia,  a  passport  or  permit  is  required  to  enable  a  subject  of  that 
country  to  emigrate.  It  may  be  that  such  permit  would  not  be  given  to  the  hnsliand, 
and  thus  the  case  would  be  brought  within  the  rule  of  many  of  the  English  cases,  ai 
well  as  the  principle  upon  which  the  rule  was  founiled.  Thus,  when  the  husband  was 
an  alien  enemy  residing  abroad,  the  wife  was  always  treated  as  i\  f-me  sole,  because  it 
might  well  be  that  he  would  not  be  permitted  to  come  into  the  comitry  where  she  rc- 
(iided.  So,  when  the  husband  was  transported,  even  though  for  a  limited  jicriod,  the 
wife  was  also  treated  as  a.  feme  sole,  a-i  the  husband  might  not  be  permitted  to  return, 
or  might  be  disposed  never  to  return,  even  after  his  tenn  of  banishment  had  cx])ired. 
In  such  cases,  it  is  said  that  it  is  greatly  for  the  interest  of  the  wife  that  s\w  should  be 
treated  and  considered  as  a,  feme  sole,  or  otherwise  she  could  neither  sue  nor  be  sued  ; 
could  neither  enforce  her  rights,  nor  obtain  the  credit  which  might  be  necessary,  in  ordor 
to  enable  her  to  make  a  support  for  herself" 

t„\    Kpo  1  Pqpsnns  on  Cont.  .306.  n.  (c). 


CH.  v.]  MARRIED    WOMEN.  85 

may  not  be  well  settled  in  this  country,  where  we  have  no  "  cus- 
tom of  London  "  ;  but  the  cases  in  our  notes  will  show  in  what 
way  our  courts  have  dealt  with  this  question. (y)  In  some  of  the 
States,  by  statute,  married  women  may  trade  as,  and  have  many 
or  all  the  rights  of,  femes  sole.{iv) 

If  a  bill  or  note  be  given  by  a  single  woman  who  afterwards 
marries,  the  husband  is  liable  upon  it,  and  they  should  bo  sued 
jointly.  (.X')  But  if  she  dies  before  a  judgment  is  obtained  for 
the  debt,  the  husband  is  no  longer  liable  as  such ;  but  her  rep- 
resentatives are  liable. (//) 

Bills  and  notes  possessed  by  a  single  woman  before  and  at 
her  marriage  are  her  choses  in  action,  which  the  husband  may 
reduce  to  his  possession  and  so  make  his  own,  or  may  not. 
If  he  does  not,  and  dies,  her  right  and  interest  to  or  in  them 
are  the  same  as  before  marriage. (z)  If  she  dies,  they  are  now 
assets  in  the  hands  of  her  administrator  ;  the  husband  has  a 
right  to  be  her  administrator ;  and  having  in  that  capacity 
collected  the  notes  or  bills,  he  will  retain  the  proceeds  for 
his  own  benefit  and  as  his  own  property. (a)     And  if  he  dies, 

(w)  In  Pennsylvania  and  South  Carolina  a  wife  may  become  a  sole  trader,  and  be- 
come liable  as  such,  in  imitation  of  the  custom  of  London.  See  1  Parsons  on  Cont. 
306,  note  d ;  Wiltliaus  v.  Ludecus,  .5  Rich.  326.  In  Gregory  v.  Pierce,  4  Met.  478,  the 
court  declared,  that  if  there  be  a  complete  and  absolute  desertion  of  the  wife  by  the 
husband  by  his  continued  absence  from  the  Commonwealth,  and  a  voluntary  separa- 
tion from,  and  abandonment  of,  his  wife,  with  an  intent  to  renounce  de  facto  the  mari- 
tal relation,  and  leave  her  to  act  as  a  feme  sole,  this  will  enable  her  to  sue,  and  render 
her  liable  to  be  sued,  as  a  feme  sole.  But  in  Chouteau  v.  Merry,  3  Misso.  254,  where 
the  husband  abandoned  his  wife  in  the  State  of  Missouri,  in  1821,  and  voluntarily  left 
that  State  and  established  himself  in  Arkansas  Territory,  where  he  continued  to  reside, 
it  was  held,  that  the  wife,  who  continued  to  reside  in  the  State  of  Missouri,  was  not 
liable  on  a  note  given  by  her  there  in  1831.  The  court  said:  "  Coverture  operates  a 
legal  disability  to  contract,  and  all  contracts  of  a  feme  covert  are  absolutely  void.  The 
facts  in  this  case  do  not  bring  it  within  any  of  the  exceptions.  The  cases  cited  from 
the  English  books  are  where  the  husbands  abjured  the  realm,  or  were  foreigners  resid- 
ing abroad.  The  principles  settled  in  those  cases  do  not  apply.  If  by  a  removal  from 
one  State  to  another,  or  a  separate  residence  in  different  States,  tlie  indissoluble  con- 
nection by  which  the  wife  is  placed  under  the  power  and  protection  of  her  husband 
could  be  cancelled,  and  the  parties  thereby  relieved  of  their  respective  liabilities  and 
disabilities,  there  would  be  little  need  of  troubling  the  legislature  or  the  courts  on  the 
subject  of  divorces."     See  Bean  v.  Morgan,  4  McCord,  148. 

(;<;)  See  the  statutes  on  this  subject  collected  in  1  Parsons  on  Cont.  306,  note. 

(x)  Mitchinson  v.  Hewson,  7  T.  R.  348. 

{y)  Ibid. 

(z)  1  Parsons  on  Cont.  28.5,  note  r. 

(a)  1  Parsons  on  Cont.  285,  note  s. 

VOL.  1.  8 


&6  NOTES   AND   BILLS.  [CH.  V 

the  right  of  taking  out  letters  of  admmistratioii  upon  her  un- 
settled estate  goes  to  his  next  of  kui,  and  not  to  hers. (6)  If 
she  leaves  debts  contracted  when  single,  for  which  the  husband 
is  no  longer  hable  as  such,  he  is  still  liable  as  her  adminis- 
trator to  the  extent  of  her  bills  or  notes  or  other  choses  in 
action  wliich  he  has  reduced  to  possession  after  her  death ; 
but  not  for  those  wliich  he  reduced  as  husband,  while  she 
lived,  (c) 

It  has  been  held,  that  if  he  gets  actual  possession  of  her 
unreduced  choses  in  action  after  her  death,  without  taking  out 
letters  of  admmistration,  they  are  then  his  property.  There 
are,  however,  some  legal,  although  perhaps  only  technical,  ob- 
jections to  this  doctrme.(c?) 

What  is  a  reduction  to  posssession  of  the  wife's  bills  and 
notes  is  not  quite  so  certain.  We  should  say,  any  act  which 
distinctly  manifested  a  purpose  of  makmg  them  his  own  ;  as 
collecting  a  note,  or  demanding  payment,  or  mdorsing,  or  as- 
signuig  \i.[e)  But  we  should  also  say,  that  either  of  these 
acts  might  be  so  done,  and  accompanied  with  such  declara- 
tions or  other  acts,  as  to  leave  the  property  still  the  wife's. 
And  even  if  the  husband  collected  the  money,  but  collected 
it  for  her,  and  immediately  invested  it,  in  good  faith,  in  other 
choses  in  action  in  her  name,  we  should  say  on  principle  that 
these  new  choses  in  action  would  stand  in  the  same  right,  and 
be  subject  to  the  same  rules  of  law,  as  did  the  bills  or  notes. (/) 

Bankruptcy  is  not  a  reduction  to  possession  ;  nor,  it  seems, 
can  a  creditor  of  the  husband  obtain  possession  of  the  bills  or 
notes  of  the  wife  without  the  co-operation  of  the  husband. (ij-) 
The  cases  on  the  subject  of  a  transfer  by  the  husband  arc  in 
some  conflict.  Perhaps  the  weiglit  of  authority  may  be,  that 
if  a  husl)and   transfers  unreduced   choses   in   action,  or  gives 


(i)   1  I'ursons  on  Cont.  285,  note  u. 

(c)  1  I'arsons  on  Cont.  285,  note  s. 

(d)  Wliitaker  v.  Whitukcr,  6  Johns.  1 12  ;  1  Parsons  on  Cont.  285,  note  t. 

(e)  Scarpellini  v.  Atchcson,  7  Q.  B.  864  ;  Tuttle  i'.  Fowler,  22  Conn.  58. 

(/)  Sec,  to  that  effect,  Stan  wood  v.  Stanwood,  17  Mass.  57;  Phelps  v.  Phelps,  20 
Pick.  556  ;  Adams  v.  Braekett,  5  Met.  280  ;  Fisk  v.  Cushmnn,  6  Cnsh.  20  ;  Wilder  v. 
Aldrieli,  2  II.  I.  .^)18  ;  Marston  v.  Carter,  12  N.  II.  159  ;  Poor  v.  Ilazleton,  15  id.  5(4 

{(l)  Yates  V.  Sherrin>:;ton,  11  M  &  W.  42,  12  id  855.  And  see  Marston  v.  Car,er, 
12  N.  II.  159;  Poor  v.  Ila/.lcton,  15  id.  564.  Bnt  sec  Shnttlesworth  v.  Noyes,  8 
Mass.  229  ;  Hay  ward  v   Hay  ward,  20  Piek.  517  :  Smith  v.  Chandler,  3  Gray,  392. 


CH.  v.]  MARRIED   WOMEN.  87 

authority  to  a  third  person  to  collect  them  for  that  person's 
own  benefit,  and  such  transferee  or  agent  proceeds  to  collect 
the  same,  and  completes  this  while  the  husband  lives,  lie  has 
the  property.  But  if  the  husband  dies  before  the  collection 
and  reduction  are  consummated,  the  wife's  rights  revive.  On 
principle,  we  should  say  that  the  actual  transfer  of  a  chose  in 
action  is  an  actual  or  a  constructive  reduction  to  possessiouj 
and  is  complete  as  soon  as  made,  whether  the  husband  lives 
or  dies.  But  that  the  right  of  reducing  is  strictly  marital, 
and  cannot  be  transferred  by  a  husband  ;  that  such  agent, 
therefore,  acts  only  for  him,  and  has  no  interest  in  the  prop- 
erty, unless  the  husband  actually  transfers  the  property  in  the 
chose  in  action  to  him,  or  confirms  him  in  the  possession  of 
the  proceeds,  and  that  such  agency  is  therefore  terminated  by 
the  death  of  the  husband. (A)  The  receipt  of  interest  is  not 
necessarily  a  reduction  to  possession  ;  nor  is,  it  seems,  a  re- 
ceipt of  a  part  of  the  principal. (i) 
\  If  a  bill  or  note  is  given  to  a  married  woman,  the  property 
in  it  is  her  husband's,  so  that  he  alone  can  indorse  it.(j)  But 
if  he  does  not  reduce  it  to  possession,  it  belongs,  at  his  death, 
to  his  wife,  and  not  to  his  executors  ;  and  she,  and  not  they, 
must  sue  it,  or  may  indorse  it.  (A')     It  has  been  thought  that, 

(h)   1  Parsons  on  Cont.,  4th  ed.,  28.5,  note  va. 

(i)  H.art  v.  Stephens,  6  Q.  B.  937  ;  Nash  v.  Nash,  2  Mad.  133  In  this  last  case 
the  father  of  a  married  woman  drew  a  eiieck  in  her  favor  upon  his  bankers  for  £  10,000. 
The  bankers  gave  lier  a  promissory  note  for  the  £  10,000.  Afterwards,  £  1,000,  part 
of  tlie  principal  money  due  on  the  note,  was  paid  to  her  husband  ;  and  he  also  received 
the  interest  due  on  the  note  up  to  the  time  of  liis  death.  Held,  that,  upon  the  hushcind'a 
death,  tlie  wife  was  entitled  to  the  note  as  a  chose  in  action  which  had  survived  to 
her. 

(  /)  ALison  V.  Morgan,  2  A.  &  E.  30.     And  see  supra,  p.  79,  note  (/. 

(k)  Tliis  was  settled  in  Massachusetts,  upon  great  consideration,  in  Draper  v.  Jack- 
son, 16  Mass  480.  And  see  Hayward  v.  Hayward,  20  Pick.  517  ;  Phelps  v.  Phelps, 
20  Pick.  556.  The  same  point  was  decided  in  England  in  the  case  of  Gaters  v.  Made- 
ley,  6  M.  &  W.  423.  And  Parke,  B.,  in  delivering  the  opinion  of  the  court,  said: 
"  When  a  chose  in  action,  such  as  a  bond  or  note,  is  given  to  a  feme  covert,  the  husband 
may  elect  to  let  his  wife  h.ave  the  benefit  of  it,  or  if  he  thinks  proper  he  may  take  it 
iiiinself ;  and  if,  in  this  case,  the  husband  had  in  his  lifetime  brought  an  action  upon 
this  note  in  his  own  name,  that  would  have  amounted  to  an  election  to  take  it  himself, 
ana  to  an  expression  of  dissent  on  his  part  to  his  wife's  having  any  interest  in  it  On 
the  otlier  hand,  he  may  if  he  pleases  leave  it  as  it  is,  and  in  that  case  the  remedy  on  it 
survives  to  the  wife,  or  he  may,  according  to  the  decision  in  Philliskirk  v.  Pluckwell,  2 
Maule  &  S.  393,  adopt  another  coiu'se,  ajid  join  her  name  with  his  own ;  and  in  that 
CA«e,  if  he  sliould  die  after  judgment,  the  \Wfe  would  be  entitled  to  the  benefit  of  the 


S8  NOTES   AND   BILLS.  [CH.  V 

if  the  husband's  money  were  the  consideration  of  the  note, 
tlie  wife  should  be  held  trustee  for  the  husband's  representa- 
tives. (/)  But  we  think  it  would  remain  hers,  if  the  husband, 
being  solvent,  intended  in  good  faith  that  it  should  be  her 
chose  in  action. (»j)  The  husband,  on  such  a  note,  may  sue 
alone, («)  or  may  join  the  wife ;  {<>)  if  he  sue  alone,  debts  due 
from  him  may  be  set  off;  if  he  join  the  wife,  it  seems  that 
debts  due  from  her  before  marriage  may  be  set  off.(y>) 

If  a  bill  or  note  be  given  to  a  wife  for  her  separate  use, 
and  the  consideration  be  her  distributive  share  in  an  intestate 
estate,  it  becomes,  as  it  is  said  by  the  common  law,  the  prop- 
erty of  the  husband. (^)  Tliat  it  would  be  so,  so  far  that  he 
alone  could  indorse,  we  should  readily  admit ;  yet  we  cannot 
but  doubt  whether  it  becomes  at  once  the  property  of  the  hus- 
band, in  the  sense  of  a  chose  in  action  reduced  to  possession. 

A  bill  being  drawn  payable  to  a  wife,  and  the  husband  suing 
the  drawer,  the  defendant  cannot  object  that  the  wife  had  no 


note,  as  the  judgment  would  survive  to  her"  This  doctrine,,  therefore,  is  not  incon- 
sistent witii  tliat  stated  ante,  p.  79,  note  d.  See  furtlier.  Hart  v.  Stephens,  6  Q.  B. 
937;  Scarpellini  v.  Atcheson,  7  id.  86-1;  Howard  v.  Oakcs,  3  Exch.  136;  Guyard  ». 
Sutton,  3  C.  B.  153  ;  AVihler  v.  Aldrich,  2  R.  I.  518  ;  Poor  v.  Ilazleton,  15  N.  H.  564. 

(/)  In  Gaters  i».  Madcley,  supra,  Parke,  B.  said  :  "  Whether  tlic  executor  of  the  hus- 
band, where  the  money  advanced  was  his,  could  compel  an  account  from  the  executor  of 
the  wife,  wiio  ivcovered  on  the  note,  by  a  bill  in  equity,  is  another  matter,  with  which, 
in  a  court  of  law,  we  have  nothing  to  do,  and  which  could  make  no  difference  in  this 
case,  as  it  would  not  vary  the  right  of  action  on  the  note."  In  Draper  v.  Jactkson, 
supra,  where  the  consideration  of  the  note  was  the  sale  of  real  estate  belonging  to  the 
wife,  ,/ac/cson,  J.  said  :  "  In  considering  this  question,  we  except  the  case  of  a  volun- 
tary gift  by  the  husband  to  his  wife ;  as  when  he  advances  his  own  money  or  other 
property,  and  takes  for  it  a  note  or  bond  to  himself  and  his  wife.  This,  like  every 
other  voluntary  conveyance,  would,  without  doubt,  be  void  as  against  the  creditors  of 
the  husband.  But  when  no  such  fact  apj)ears,  and  especially  when,  as  in  the  present 
case,  the  contrary  appears,  the  law  seems  to  require  that  the  wife  sliall  have  the  note  or 
bond,  if  she  survives."  And  see  Adams  v.  Brackett,  5  Met.  280;  Guyard  v.  Sutton,  3 
C.  B    153. 

(»i)  See  preceding  note.     And  see  ciuses  cited  supra,  p.  86,  note  /^ 

(h)  Burroiigii  v.  Moss,  10  B.  &  C.  558;  Sutton  i-.  Warren,  10  Met.  451.  And  in 
McNcilage  v.  Ilolloway,  1  B.  &  Aid.  218,  where  a  bill  of  exchange  was  jiayable  to  a 
fiutf  soli-,  who  intermarried  before  the  same  was  due,  it  was  Iwhl,  that  tlu;  husband 
might  sue  in  his  own  name,  without  joining  the  wife,  although  the  latter  had  not  in- 
dorsed the  bill.  But  .see,  as  to  this  case,  Uichards  v.  Richards,  2  B.  &  Ad.  447  ;  Ga- 
ters V.  Madcley,  G  M.  &  W.  423  ;  Hart  v.  Stephens,  6  Q.  B.  937. 

(o)   I'hilliskirk  I',  riuckwell,  2  Maule  &  S.  393. 

{/))   Hurrougb  r.  Moss,  10  B.  &  C.  558. 

(ry)  Commonwealth  v.  Manley,  12  Pick.  173. 


CH.  v.]  PERSONS   UNDER   GUARDIANSHIP.  89 

right  to  demand  })aymeiit  of  the  drawee,  and  that  consequently 
there  has  been  no  legal  demand  or  presentment. (/•) 

Where  a  wife  lent  to  her  husband  and  two  others  money  which 
belonged  to  her  as  administratrix,  taking  their  joint  note,  it  was 
held  that  she  could  not  sue  this  note  while  the  husband  lived,  but 
might  sue  tlie  other  parties  after  his  death. (s)  But  a  note  given 
by  tlie  luisband  alone  to  the  wife  during  coverture  is  void,  al- 
though the  consideration  was  money  belonging  to  the  wife  at  the 
time  of  their  marriage.  Consequently,  the  wife  cannot  maintain 
an  action  on  tlie  note,  after  her  husband's  decease,  against  his 
executor.  (^) 

Where  a  note  secured  by  mortgage  was  made  to  husband  and 
wife  to  securQ  the  purchase-money  of  land  belonging  to  the  wife, 
the  husband  dying,  the  note  and  mortgage  went  to  the  wife,  and 
not  to  his  administrators. (w) 

Payment  to  a  married  woman  of  a  sum  due  on  a  note  to  her 
will  not  discharge  the  party  making  it,  unless  the  payment  were 
authorized  by  tlie  husband. (y) 

There  are  some  rules  or  principles  in  relation  to  indorsement 
and  acceptance  when  made  by  a  married  woman,  or  of  a  note  or 
bill  to  a  married  woman,  which  we  shall  consider  when  we  treat, 
in  a  later  chapter,  of  indorsement  and  acceptance  specifically. 


SECTION    III. 

OF    PERSONS    UNDER    GUARDIANSHIP. 

These  are  either  infants,  of  whom  we  have  already  spoken,  or 
those  who  are  under  guardianship  under  our  State  statutes,  as 
spendthrifts,  drunkards,  &c.,  or  the  insane.  Generally  these  stat- 
utes make  sucli  persons  incapable  of  entering  into  contracts. (?t') 
If  tlieir  guardians  or  trustees  sign  notes  for  them,  affixing  to 
their  names  their  office,  as  "A.  B.,  guardian,"  tliey  are  neverthe- 

(?)  Cathell  V.  Goodwin,  1  Harris  &  G.  468. 
(s)   Richards  v.  Uic  hards,  2  B.  &  Ad.  447. 
{t)  Jackson  v.  Parks,  10  Cush.  550;  Sweat  w.  Hall,  8  Vt.  187. 
(u)  Draper  v.  Jackson,  16  Mass.  480. 
(v)  Byles  on  Bills,  6tli  ed.,  p,  51. 
.  («•)   Smith  V.  Spooner,  3  Pick.  229  ;  Manson  v.  Felton,  13  Pick.  206.     Sec  Chew  v. 
Bank  of  Baltimore,  14  Md.  299. 
8* 


90  NOTES  AND   BILLS  [CH.  V 

less  held  j>ersonallv.(a;)  One  reason  is,  that  the  note  would  oth- 
erwise be  inoperative,  as  the  guardian  cannot  bind  by  such  an 
instrument  the  person  or  the  property  of  his  ward.  Another  is, 
that  it  is  still  the  promise  of  the  signer,  and  the  name  of  his 
office  is  but  a  part  of  his  description.  Undoubtedly  he  may 
secure  himself  from  personal  liability  by  saying  that  he  promises 
to  pay  out  of  the  ward's  estate,  and  only  if  that  be  sufficient. 
But  such  an  instrument  would  not  be  a  regular  promissory  note. 
In  a  late  case,  where  the  guardian  sold  property  of  minors,  and 
took  notes  payable  to  his  order  as  guardian,  it  was  held  that  an 
indorsement  by  him  passed  the  title  to  a  person  who  received  for 
value  and  in  good  faith,  the  words  guardian,  &c.  being  merely 
words  of  description. (^) 


SECTION    lY. 

OF  AGENTS. 

A  MAN  may  do  by  his  agent  whatever  he  can  do  himself,  and 
his  agent  can  do  for  him.(2r)  And  any  person  can  be  the  agent 
of  another,  who  is  physically  and  mentally  capable  of  executing 
the  agency.      At  least  the  common  personal  disabilities  do  not 


(x)  In  Thacher  v.  Dinsmore,  5  Mass.  299,  where  one  p^ave  a  negotiable  note,  as  guar- 
dian to  an  insane  jierson,  it  was  held,  tiiat  lie  was  liable  in  his  individual  capacity,  after 
his  guardianship  was  discharged.  Parsons,  C.  J.  said  :  "If  an  action  is  maintainable 
against  any  person,  it  must  be  the  defendant ;  for  the  guardian  of  an  insane  person  can- 
not make  his  ward  liable  to  an  action  as  on  his  own  contract,  by  any  promise  which  the 
guardian  can  make.  Neither  tan  the  defendant  be  sued  in  his  cai)acity  of  guardian, 
so  as  to  make  the  estate  of  his  ward  liable  to  be  taken  in  execution ;  for  the  judgment 
is  not  against  the  goods  and  estate  of  the  ward  in  his  hands,  but  against  himself.  A 
creditor  may  sue  the  insane  person,  who  shall  be  defended  by  his  guardian,  and  in  that 
case,  judgment  being  against  the  insane  person,  it  may  be  satisfied  by  his  property. 
The  defendant's  description  of  himself  in  the  notes  as  guardian  cannot  vary  the  form 
of  the  action  ;  but  it  is  for  his  own  benefit,  that,  on  payment  of  the  notes,  he  may  not 
be  precluded  from  charging  the  moneys  paid  to  the  account  of  his  ward.  If  the  defend- 
ant, therefore,  was  ever  lialjle  to  this  suit,  he  must  continue  liable,  notwithstanding  tho 
discharge  of  the  guardianship  ;  for  by  that  tho  plaintiff's  rights  cannot  be  affected, 
whose  claim  is  on  the  defendant  personally,  and  not  on  his  oflicial  character."  Forstcr 
V.  Fuller,  6  Mass.  .OS,  and  Robertsons  v.  Banks,  1  Smedcs  &  M.  666,  aro  to  the  same 
effect. 

{y)  Thornton  v.  Hankin,  19  Misso.  193. 

{:)  Conibes's  Case,  9  l{cp.  75. 


CH.  v.]  AGENTS.  91 

iucapacitate  one  from  acting  as  agent,  as  infancy  or  coverture. (a) 
Nor  is  any  particular  form  or  mode  of  appointment  necessary, 
nor  any  especial  way  of  executing  the  agency,  other  than  that 
which  the  authority  itself  designates. 

It  seems  formerly  to  have  been  held,  that  only  the  formal  exe- 
cution of  an  instrument  in  the  name  of  the  principal  by  the 
agent,  sufficed.  And  this  is  still  the  more  correct  way.  A,  be- 
ing the  agent  of  B,  should  sign  any  paper  which  he  executes  as 
B's  paper,  "  B  by  A,"  and  not  "  A  for  B."  In  the  first  case  the 
execution  is  B's,  by  his  instrument  A ;  in  the  other  it  is  A's,  for 
his  employer  B;  or  in  other  words,  the.  technical  rule  was,  that 
in  the  first  case  it  was  B's  promise  by  A,  and  in  the  latter,  A's 
promise  made  at  the  request  of  B.  Now,  however,  it  seems  to 
be  well  settled,  that  the  actual  intent  of  the  parties,  if  it  is  ob- 
vious and  certain,  prevails  over  this  distinction,  and  determines 
whether  the  act  was  that  of  the  principal  or  of  the  agent.  (6) 

It  seems  to  be  common  among  commercial  men,  at  least  in 
England,  for  an  agent,  as  A,  to  sign  "A  by  procuration  of  B," 
where  B  is  the  principal.  But  this  is  inaccurate ;  for  it  might 
import  that  B  was  the  agent,  signing  by  procuration  for  A  the 
principal,  (c) 

It  lias  been  doubted  whether  a  note,  executed  by  an  agent  by 
signing  the  name  of  the  principal  merely,  without  adding  any- 
thing to  indicate  that  the  signature  was  by  an  agent,  would  be 
binding  on  the  principal. (c?)     Undoubtedly  there  are  grave  ob- 

(a)  Co.  Litt.  .52  a. 

(b)  See  1  Parsons  on  Cent.  47,  note  x. 

(c)  See  note  to  Davidson  v.  Stanley,  2  Man.  &  G.  721. 

(d)  "Wood  V.  Goodridge,  6  Gush.  117.  This  was  the  case  of  a  mortgage  deed  and 
note  made  under  a  power  of  attorney  under  seal,  by  simply  signing  tlie  name  of  the 
principal  opposite  to  a  seal  in  the  case  of  the  deed,  and  in  the  case  of  the  note  by 
simply  writing  the  principal's  name  at  tlie  foot.  It  was  not  necessary  to  decide  the 
point,  the  court  being  of  opinion  that  the  power,  though  very  general  in  its  terms,  did 
not  confer  authority  to  mortgage,  nor  to  borrow  money  and  bind  the  principal  by  a 
promissory  note.  But  the  question  of  the  manner  of  execution  was  much  considered, 
and  upon  that  point  Fteiclur,  J.  said  :  "  It  should  appear  upon  the  face  of  the  instru- 
ments that  they  were  executed  by  the  attorney,  and  in  virtue  of  the  authority  delegated 
to  him  for  this  purpose.  It  is  not  enough  that  an  attorney  in  fact  has  authority,  but  it 
nmst  appear  by  the  instruments  themselves,  wlaich  lie  executes,  that  he  intends  to  exe- 
cute tliis  authority.  The  instruments  should  be  made  by  the  attorney,  expressly  as 
such  attorney  ;  and  the  exercise  of  his  delegated  authority  should  be  distinctly  avowed 
upon  the  instruments  themselves.  Whatever  may  be  the  secret  intent  and  purpose  of 
the  attorney  or  whatever  may  be  his  oral  declaration  or  profession  at  the  time,  he  does 


92  NOTES   AND   BILLS.  [CH.  V. 

jections  to  such  a  mode  of  execution,  and  it  ought  never  to  be 
adopted ;  but  still  we  think  it  would  be  valid,  and  the  agent's 
authority  might  be  shown  by  parol. (e) 

It  is  conceded,  that  if  the  name  of  the  principal  is  signed  by 
an  agent  in  the  presence  of  the  principal  and  by  his  direction, 
this  will  be  sufficient  to  bind  the  principal,  though  there  be  noth- 
ing on  the  face  of  the  note  to  show  the  agency.  (/) 

If  the  agent  sign  the  note  with  his  own  name  alone,  and  there 
is  nothing  on  the  face  of  the  note  to  show  that  he  was  acting  as 
agent,  he  will  be  personally  liable  on  the  note,  and  the  principal 
will  not  be  liable. {^)  And  although  it  could  be  proved  that  the 
agency  was  disclosed  to  the  payee  when  the  note  was  made,  and 
that  it  was  the  understanding  of  all  parties  that  the  principal, 


not  in  fact  execute  the  instruments  as  attorney,  and  in  the  exercise  of  his  power  as 
attorney,  unless  it  is  so  expressed  in  the  instruments.  The  instruments  must  speak  for 
themselves.  Though  the  attorney  should  intend  a  deed  to  be  the  deed  of  his  principal, 
yet  it  will  not  be  the  deed  of  the  principal,  unless  the  instrument  purports  on  its  face 
to  be  his  deed.  Tiie  authority  given  clearly  is,  that  the  attorney  shall  execute  the  deed 
as  attorney,  hut  in  the  name  of  the  principal."  See  ante,  p.  80,  note  (j ;  1  Parsons  on 
Cont  9G,  note  97. 

(e)  This  appears  to  have  been  regarded  as  clear  in  several  cases,  which  have  never 
been  questioned.  Tims,  in  Neal  v.  Erving,  I  Esp.  61 ,  it  was  held,  that  where  one  person 
sub.scribcd  a  policy  of  insin-ance  with  the  name  of  another,  proof  of  his  having  done  it 
in  many  instances  is  sufficient  to  charge  him  whose  name  is  so  subscribed,  without  pro- 
ducing any  power  of  attorney.  So  also,  in  Watkins  v.  Vince,  2  Stark.  368,  it  was  held, 
that  evidence  that  the  son  of  the  defendant  had,  in  three  or  four  instances,  signed  bills 
of  exchange  for  his  father,  is  sufficient,  in  an  action  against  the  father  on  a  guaranty, 
to  warrant  the  reading  of  an  instrument  purporting  to  be  a  guaranty  by  the  father  in 
the  handwriting  of  the  son.  And  see  Llewellyn  "•  Winckworth,  13  M.  &  W.  598; 
Cash  V.  Taylor,  Lloyd  &  W.  Merc.  Cas.  178  ;  Barber  v.  Gingell,  3  Esp.  60  ;  Brigham 
V.  Peters,  1  Gray,  139.  It  may  be  added,  that  Sergeant  Manning  (a  very  high  author- 
ity), speaking  of  the  manner  in  which  an  agent  should  sign,  says  :  "The  proper  mode 
of  signing  by  procuration  is,  either  to  use  the  name  of  the  principal  only,  or  to  sign, 
'  A.  B.  (the  principal),  by,  or  by  the  procuration  of,  C  D.  (the  agent).'  "  See  the  note 
to  Davidson  v.  Stanley,  2  Man.  &  G.  721. 

(  f)  This  was  decided  in  Morse  v.  Green,  13  N.  H.  32.  And  the  rule  is  there  stated 
in  general  terms,  that  if  the  defendant  have  authorized  another  to  subscribe  his  name  tO 
a  note,  the  fact  that  the  signature  was  placed  there  by  an  agent  need,  not  api)ear  on  tho 
face  of  the  note ;  and  parol  evidence  is  admissible  to  prove  that  the  name  of  a  person 
who  ai)pears  to  be  one  of  the  makers  of  a  note  was  not  written  by  him,  but  by  another 
person  by  his  direction  ;  as  such  evidence  neither  limits  nor  enlarges  the  terms  of  the 
contract.     And  sec  Wood  i'.  Goodridge,  supra  ;  Haven  v.  Hobbs,  1  Vt.  238. 

(7)  There  is  an  apparent  (but  only  apparent)  exception  to  this  rule,  when  tlic  prin- 
cipal carries  on  business  in  the  name  of  an  agent.  In  that  case,  the  name  of  the  agent 
is  the  name  of  the  principal,  pro  hac  vice.  Bank  of  Uochester  v.  Monf<:ath,  1  Denio, 
402. 


CH.  v.]  AGENTS.  93 

and  not  the  agent,  should  be  held,  this  will  not  generally  be  suffi- 
cient, either  to  discharge  the  agent,  or  to  render  the  principal 
liable  on  the  note.{h)  But  the  principal  will  be  liable,  under 
such  circumstances,  on  the  original  consideration  for  which  the 
note  was  given,  (i)     And  there  may  be  cases  in  which  the  agent 

{h)  See  1  Parsons  on  Cent.  48,  note  a.  This  principle  was  established  upon  much 
consideration  in  the  leading  case  of  Stackpole  v.  Arnold,  11  Mass.  27.  That  was  an 
action  against  the  defendant  as  maker  of  three  promissory  notes.  The  notes  were 
signed  by  another  person  in  his  own  name,  and  there  was  nothing  on  the  face  of  them 
to  indicate  any  agency,  or  that  the  defendant  had  any  connection  with  them.  At  the 
trial,  the  person  who  signed  the  notes  testified  tliat  they  were  given  for  premiums  upon 
policies  of  insurance  procured  by  him  in  the  office  kept  by  the  plaintiff,  at  the  request 
and  for  tlie  use  of  the  defendant,  on  property  belonging  to  him  ;  and  that  the  witness 
acted  merely  as  the  factor  of  the  defendant,  and  intended  to  bind  him  by  the  premium 
notes.  The  judge  instructed  the  jury,  that,  "  if  they  believed  the  notes  to  have  been 
made  and  signed  for  and  in  behalf  of  tiie  defendant,  their  verdict  ought  to  be  for  tho 
phiintift'."  It  was  held,  that  the  evidence  was  improperly  admitted,  and  the  instruction 
was  erroneous.  The  same  principle  was  reafKrmed  in  Bedford  Com.  Ins.  Co.  v.  Co- 
veil,  8  Met.  442,  and  Taber  v.  Cannon,  8  Met.  4.56,  though  the  facts  in  these  cases  were 
not  so  strong.  In  Bedford  Com.  Ins.  Co.  v.  Covell,  the  plaintiffs,  on  the  application 
of  S.,  who  was  C.'s  agent,  caused  "  S.  for  C.  to  be  insured  on  ship  G.,"  and  S.  gave 
the  plaintiffs  a  promissory  note  for  the  premium,  signed  by  himself  alone,  without 
mentioning  his  agency,  and  charged  the  premium  in  account  with  C,  and  had  it  al- 
lowed. S.  was  afterwards  declared  bankrupt,  and  the  plaintiffs  proved  their  note  as  a 
claim  against  him,  and  received  a  dividend  upon  it.  Held,  that  the  plaintiffs  could  not 
maintain  an  action  against  C.  to  recover  the  balance  of  the  note.  In  Tabcr  v.  Cannon, 
A,  who  was  authorized,  as  agent,  by  the  owners  of  a  whale-ship,  to  fit  her  for  sea  and 
purchase  supplies  for  her  voyage,  bought  the  supplies  of  B  ;  B  drew  a  bill  of  exchange 
for  the  amount  of  the  supplies,  payable  to  his  own  order,  and  addressed  "  to  the  agent 
and  owners  "  of  the  ship.  A  accepted  the  bill  by  writing  his  name  thereon,  without 
any  addition  indicating  his  agency.  Held,  in  a  suit  by  an  indorsee  of  the  bill  against 
the  owners  of  the  ship  as  acceptors,  that,  admitting  the  authority  of  A  to  bind  them 
by  accepting  for  them  as  their  agent,  yet  he  had  not  bound  them  by  the  acceptance 
as  made,  and  that  he  alone  was  liable  as  acceptor.  The  same  rule  is  well  settled 
in  England.  Thus,  in  Thomas  v.  Bishop,  2  Stra  955,  a  bill  was  drawn  upon  tho 
defendant,  as  "  Cashier  of  the  York  Buildings  Company."  The  defendant  accepted 
the  bill  by  simply  writing  his  own  name.  It  was  field,  that  lie  was  liable  as  acceptor. 
The  court  said  :  "A  bill  of  exchange  is  a  contract  by  the  custom  of  merchants,  and 
the  whole  of  that  contract  must  appear  in  writing.  Now  here  is  nothing  in  writing  to 
bind  the  company,  nor  can  any  action  be  maintained  against  them  upon  the  bill ;  for 
the  addition  of  cashier  to  the  defendant's  name  is  only  to  denote  the  person  with  more 
certainty."     See  Shelton  v.  Darling,  2  Conn.  43.i,  and  post,  p.  102,  note  b. 

((■)  Pentz  V.  Stanton,  10  Wend.  271  ;  Emerson  v.  Providence  Hat  Manuf.  Co.,  12 
Mass.  237;  Melledge  v.  Boston  Iron  Co.,  5  Cush.  158.  But  where  a  party,  dealing 
with  an  agent,  takes  his  promissory  note,  with  a  full  knowledge  of  his  agency  and  of 
the  liability  of  the  principal  for  the  debt  for  which  the  note  is  given,  he  thereby  dis- 
charges tlie  principal ;  so  that  he  cannot  maintain  an  action  against  him  for  the  origi- 
nal debt.  Paige  v.  Stone,  10  Met.  160;  Hyde  v.  Paige,  9  Barb.  150;  Ranken  v. 
Deforest,  IS  Barb.  143. 


94  NOTES   AND   BILLS.  [CH.  V. 

would  not  be  personally  liable  on  the  bill  or  note,  though  there 
should  be  nothing  on  the  face  of  the  instrument  to  indicate  the 
agency.  Thus,  if  an  agent,  in  the  execution  of  his  agency,  in- 
curs a  debt  on  behalf  of  his  principal,  and  draws  upon  his  prin- 
cipal a  bill  for  the  amount  thereof,  in  favor  of  the  creditor,  it  has 
been  held,  that  the  agent  will  not  be  liable  on  the  bill,  if  it  was 
the  understanding  of  the  parties  that  he  acted  as  agent  merely, 
and  did  not  intend  to  make  the  debt  his  own.  The  principal  ob- 
ject of  drawing  the  bill,  in  such  case,  is  to  certify  to  the  princi- 
pal the  amount  due  the  creditor ;  and  the  agent  may,  it  seems, 
defend  on  the  ground  of  a  want  of  consideration. (j)  Of  course 
this  will  not  apply  to  a  subsequent  bona  fide  holder  without 
notice.  And  if  an  agent  draws  a  bill  on  a  third  person  in  his 
own  name,  but  there  is  sufficient  on  the  face  of  the  instrument 
to  inform  the  drawee  that  he  is  to  pay  the  amount  on  account 
of  the  principal,  and  not  on  account  of  the  drawer,  the  drawee, 
having  paid  the  bill,  will  not  be  entitled  to  maintain  an  action  for 
money  paid  against  the  agent.  Thus,  where  the  agent  of  the 
owners  of  a  steamboat  drew  a  bill  in  his  own  name,  and  directed 
the  drawee  to  charge  the  amount  "  to  account  of  steamer  Walter 
Scott,"  it  was  held  that  the  agency  of  the  drawer  was  apparent 
on  the  face  of  the  bill,  in  consequence  of  this  direction,  which 
negatived  the  idea  that  he  was  to  be  personally  bound. (A;) 

It  has  indeed  been  held,  that  whenever  it  is  doubtful  from  the 
face  of  a  bill  or  note  whether  it  was  intended  to  operate  as  the 
personal  engagement  of  the  party  signing  it,  or  to  impose  an  ob- 
ligation upon  some  third  person  as  his  principal,  parol  evidence 
is  admissible  to  show  the  true  nature  of  the  transaction. (/)     The 


(_;")  Roberts  v.  Austin,  5  Whart.  313,  2  Miles,  234  ;  Knimbliaar  i".  Ludclinfr,  3  Mart. 
La.  6-10  ;  Wolfe  i;.  Jcwett,  10  La.  383  ;  Lincoln  v.  Smith,  11  La.  11.  But  see  May- 
hew  V.  Prince,  11  Mass.  54  ;  Newhall  v.  Dunlap,  14  Maine,  180;  Soworhy  w.  Butcher, 
2  Cromp.  &  M.  368.  In  Hicks  v.  Hinde,  9  Barli.  ."528,  where  an  agent  drew  a  hill  on  his 
principal  for  a  debt  due  from  the  princip.il  to  the  payee,  adding  the  word  "  apont "  to 
liis  signature,  and  the  payee  knew  that  the  drawer  was  autliorized  by  his  ])rincipal  to 
draw  the  bill  as  his  agent,  and  it  was  the  understanding  of  all  parties  that  the  dr.iwei 
signed  only  as  agent,  and  not  with  a  view  of  binding  himself;  it  was  held,  that  the 
drawer  was  not  personally  liable  on  the  bill.     And  see  infra,  p.  'JO,  note  n. 

(k)  Mahcr  v.  Overton,  9  La.  115. 

(/)  Kean  v.  Davis,  1  N.  .1.  G83  ;  Lazarus  v.  Shearer,  2  Ala.  718;  Wctunipka,  &c.  \\.  Co. 
V.  Bingham,  5  Ala.  657  ;  Mechanics'  Bank  i'.  Bank  of  Columbia,  5  Wheat.  326  ;  Owings 
i;.  Grubbs,  6  .1.  ,J.  Marsh.  31  ;  Webb  v.  Burke,  5  B.  Mon.  51  ;  Brockway  v.  Allen,  17 
Wend  40;  Early  v.  Wilkinson,  9  Grat.  68.    In  the  note  to  Rathbon  v.  Budlong,.  Pent/ 


en.  v.]  AGENTS.  95 

cases,  however,  which  have  held  this  doctrine,  arc  not  entirely 
agreed  as  to  the  principle  on  which  it  rests,  nor  do  its  limits  ap- 
pear to  be  well  defined.  Perhaps,  as  a  generid  rule,  it  should  be 
received  with  some  distrust. 

If  an  agent  make  a  note  in  his  own  name,  and  add  to  his  sig- 
nature the  word  "agent,"  but  there  is  nothing  on  the  note  to 


V.  Stanton,  &c.,  1  Ara.  Lead.  Cas.,  p.  453  (p.  605  in  the  3d  ed.),  the  rule  is  stated  thus  : 
"  Where  there  is  a  doubt  or  ambiguity  on  tiie  face  of  the  instrument,  as  to  whether  the 
person  means  to  bind  himself,  or  only  to  give  an  evidence  of  debt  against  an  institntion 
or  body,  of  which  he  is  a  representative,  parol  evidence  is  undoubtedly  admi.ssible;  not, 
indeed,  to  show  the  intention  of  tlie  parties  to  the  contract,  but  to  prove  extrinsic  cir- 
cumstances by  which  the  respective  liability  of  the  principal  and  agent  may  be  deter- 
mined ;  such  as  to  which  the  consideration  passed  and  credit  was  given,  and  whether 
the  agent  had  authority,  and  whether  it  was  known  to  the  jiarty  that  he  acted  as  agent. 
The  extent  of  the  principle  as  to  the  admissibility  of  parol  evidence  appears  to  be  this : 
Where  the  names  of  both  principal  and  agent  appear  on  the  instrument,  and  the  con- 
tract, though  in  the  name  of  the  agent,  discloses  a  reference  to  the  business  of  the 
principal,  so  that  the  instrument,  as  it  stands,  is  consistent  with  either  view,  of  its  being 
the  engagement  of  tlie  principal  or  of  the  agent,  parol  evidence  is  admissible,  in  a  suit 
against  the  agent,  to  charge  him,  by  showing  either  tliat  credit  was  given  to  him,  or 
that  he  had  not  authority  to  bind  the  principal  by  that  contract,  which  wouUl  create  a 
consideration  for  a  liability  on  his  part,  or  to  discliarge  him  by  proving  that  the  con- 
sideration passed  directly  to  his  principal,  as,  that  credit  having  been  given  to  the  prin- 
cipal alone,  the  consideration  of  the  note  signed  by  him  was  an  antecedent  liability  on 
the  part  of  the  principal,  and  that  the  other  party  knew  that  he  acted  as  agent,  and 
thus  destroying  all  consideration  for  a  liability  on  his  part ;  and  in  like  manner,  to 
charge  or  discharge  the  principal  by  similar  circumstances."  Mechanics'  Bank  v.  Bank 
of  Columbia,  5  AVheat.  326.  In  Eaton  v.  Bell,  5  B.  &  Aid.  34,  where  commissioners 
under  an  enclosure  act  drew  bills  upon  their  bankers,  requiring  them  to  pay  the  sums 
therein  mentioned  on  account  of  the  public  drainage,  and  to  place  the  same  to  their 
Account  as  commissioners ;  it  was  held,  that  the  commissioners  were  personally  liable 
to  their  bankers  for  the  amount  of  the  bills.  But  it  seems  that  it  might  have  been 
otherwise,  if  the  direction  had  been  to  place  the  same  to  the  account  of  the  enclosure. 
Bai/ley,  J.  said  :  "  The  form  of  the  draft  is  to  pay  A.  B.  or  bearer,  on  account  of  the 
public  drainage.  The  persons,  therefore,  who  signed  that  order,  assert  that  the  money 
is  to  be  applied  to  the  purpose  of  the  public  drainage.  The  draft  then  goes  on, '  and  place 
the  same  to  our  account  as  commissioners  of  the  enclosure  act.'  Therefore  the  money 
is  to  be  placed  to  their  debit  in  the  account  which  they  have  as  commissioners.  It  does 
not  say,  'place  the  same  to  the  account  of  the  enclosure,'  but  '  to  our  account  as  com- 
missioners.' Now  the  defendants  must  have  known  what  they  had  collected,  and  what 
means  they  had  of  collecting  more;  and  they  ought  to  have  taken  care,  before  tliey 
drew  drafts,  that  they  had  money  to  reimburse  the  persons  who  advanced  money  on 
those  drafts."  In  Fuller  r.  Hooper,  3  Gray,  334,  it  was  hM,  that  a  bill  of  exchange, 
stamped  in  the  margin,  "  Pompton  Iron  Works,"  and  concluding  thus,  "  Which  place 
to  account  of  Pompton  Iron  Works,  W.  Burtt,  Agent,"  purported  on  its  face  to  be  the 
bill  of  the  Pompton  Iron  Works,  and  was  binding  on  the  person  carrying  on  the  manu- 
facture of  iron  in  that  name,  if  Burtt  was  his  authorized  agent.  And  see  Tripp  v. 
Swanzey  Paper  Co.,  13  Pick.  291. 


96  NOTES   AXD   BILLS.  [CH.  V 

indicate  who  is  the  principal,  the  agent  will  be  personally  liable, 
just  as  if  the  word  agent  were  not  added. (w)  It  has,  however, 
been  held  that  an  indorsement  in  this  form  will  not  render  the 
agent  liable  as  an  indorser,  because  it  will  be  considered  as  in- 
tended only  to  pass  the  property  in  the  paper,  and  therefore  as 
equivalent  to  an  indorsement  "  without  recourse." (w) 


(m)  Pentz  v.  Stanton,  10  Wend.  271  ;  Savage  v.  Rix,  9  N.  H.  263;  Thurston  v 
Mauro,  1   Greene,  2.31. 

(n)  Mott  V.  Hicks,  1  Cowcn,  513.  Accordingly,  in  Babcock  v.  Beman,  1  Kern.  200, 
where  a  note  was  payable  to  the  order  of  "  K.  Beman,  Trcas.,"  and  he,  being  tho 
treasurer  of  a  corporation  with  authority  as  such  to  receive  and  transfer  the  note,  in 
dorsed  it,  "  H.  Beman,  Treasurer,"  and  delivered  it  to  the  plaintiffs,  who  received  it 
on  account  of  a  debt  due  them  from  the  corporation,  witii  notice  of  the  capacity  in 
whicii  Beman  acted  ;  it  was  held,  that  he  was  not  individually  liable  as  indorser  of  tho 
note.  Denio,  J.  said  :  "  Tiie  question  is,  whether  this  was  a  qualified  indorsement,  pass- 
ing, as  it  clearly  did,  the  interest  in  the  note,  but  without  any  other  contract  on  the 
part  of  the  defendant.  This  question  was  decided  against  the  plaintiffs,  in  the  Supreme 
Court,  more  than  thirty  years  ago,  and  has  since  been  acquiesced  in  by  the  profession, 
and  I  have  no  doubt  has  been  extensively  acted  on  by  business  men.  In  Mott  o. 
Hicks,  1  Cowen,  513,  the  only  material  question  was,  whether  a  witness  named  House- 
man was  competent  to  testify,  he  having  been  objected  to  on  the  ground  of  interest. 
He  had  indorsed  a  note  made  by  a  manufacturing  corporation,  payable  to  his  order, 
adding  to  ids  name  the  word  agent.  His  name  as  payee  in  the  note  had  no  addition 
annexed  to  it,  but  it  was  proved  that  the  plaintiff  was  privy  to  the  consideration 
upon  which  it  was  given  and  indorsed  ;  and  that  consideration  was  a  debt  due  from 
tlie  corporation.  If  Houseman  was  personally  liable  on  this  indorsement,  lie  was 
interested,  and  incompetent  as  a  witness:  otherwise  he  was  not.  The  court  held,  that 
it  was  a  qualified  indorsement,  operating  as  a  transfer  of  the  note,  but  not  contain- 
ing a  contract  to  pay.  Chief  Justice  Savage  dissented,  on  the  ground  that  it  had 
not  been  proved,  except  by  Houseman  himself,  that  he  was  agent  of  the  company,  and 
that  the  note  was  payable  to  liim  individually.  Li  these  two  particulars,  the  situation 
of  tills  defendant  is  more  favorable  than  that  of  Houseman.  It  has  been  held,  that  an 
indorsement  of  a  note  to  the  cashier  of  a  moneyed  corporation,  by  adding  the  word 
cashier  to  his  n.ame  in  the  indorsement,  is  a  transfer  to  the  cor])()ration,  where  that  was 
the  design  of  the  transaction.  (VVatervliet  Bank  t'.  White,  1  Denio,  608.)  So  this 
note,  before  the  indorsement,  may  be  considered  as  having  been  the  property  of  tho 
nianufactuiing  corporation,  it  being  substantially  averred  that  such  was  the  nature  and 
intent  of  the  transaction  upon  which  it  was  given.  The  case  of  Mott  r.  Hicks  is  there- 
fore a  direct  adjudication  upon  this  very  point,  by  the  highest  court  of  original  jurisdic- 
tion in  this  State;  and  it  has  been  acquiesced  in  and  regarded  as  tho  law  for  a  great 
length  of  time.  The  question  was  in  the  highest  degree  practical,  and  of  more  fre- 
quent occurrence  than  almost  any  other.  It  moreover  related  to  ct)mmcrcial  paper,  in 
respect  to  which  it  is  of  the  utmost  importance  that  the  decisions  of  the  courts  should 
i)e  stable,  so  that  they  may  be  relied  on  with  confidence  by  the  community.  We  should 
be,  therefore,  nio.st  reluctant  to  de|)art  from  the  principle  of  (he  case,  even  could  it  bo 
successfully  questioned  as  not  in  harmony  with  legal  analogies  or  antecedent  cases. 
We  think,  however,  it  is  not  subject  to  any  such  criticism.  It  has  been  followed  in 
principle  in  Brockway  v.  Allen,  17  Wend.  40,  and  in  Hicks  v.  Hinde,  9  Barb.  528 


CH.  v.]  AGENTS.  97 

If  an  agent  of  an  incorporated  company  make  a  note,  begin- 
ning, "1  promise,"  etc.,  and  sign  it,  "  A.  B.,  agent  of coiiir 

pany,"  it  is  quite  well  settled,  that  the  company,  not  the  agent, 
will  be  liable  on  tiie  note.(o)     And  the  same  rule  applies,  a  for- 

aiid  has  not  been  questioned,  so  far  as  we  know,  by  any  case"  And  see  Collins  v. 
Johnson,   IG  Ga.  458.     See  also,  Sdfra,  p.  94,  note  j. 

(u)  l)esi)ateh  Line  of  Packets  v.  Bellamy  Manuf.  Co.,  12  N.  H  205  ;  McCall  v.  Clay- 
ton, Busbee,  422  ;  rroclor  v.  Webber,  1  D.  Chip  371  ;  Roberts  v.  But(ou,  14  Vt.  195  , 
Shelton  ('.  Darling,  2  Conn.  435  ;  Johnson  v.  Smith,  21  Conn.  627.  In  Ilovey  v.  Ma- 
gill,  2  Conn.  680,  where  the  defendant,  being  the  agent  of  a  corporation,  gave  a  note  in 
the  form  stated  in  the  text,  Swift,  C.  J.  said  :  "  When  an  agent  duly  authorized  sul)- 
scribes  an  engagement,  in  such  manner  as  to  manifest  an  intent  not  to  bind  himself, 
but  to  bind  the  principal  ;  and  wiien,  by  his  subsciiption,  he  has  actually  buiuid  the 
])riucipal,  tlicu  it  is  clear  that  the  contract  cannot  be  binding  on  him  personally.  It 
will  be  agreed  that  no  precise  form  of  words  is  required  to  be  used  in  the  signature; 
that  every  word  must  have  an  effect,  if  possible ;  and  that  the  intention  must  be  col- 
lected from  the  whole  instrument  taken  together.  Who  can  entertain  a  doul)t,  upon 
reading  the  note  in  question,  that  it  was  the  intent  of  the  defendant  to  bind  the  com- 
pany, and  not  himself?  It  is,  however,  said,  that  he  has  made  use  of  the  expression 
'I  promise,'  wiiich  is,  in  terms,  a  jiersonal  undertaking;  but  he  has  qualitied  it  by  add- 
ing his  character  of  agent,  wiiich  unequivocally  shows  that  he  did  not  mean  to  bind 
himself  Again,  it  is  said,  he  might  have  added  this  merely  to  distinguish  the  company 
from  his  private  concerns.  This  is  a  far-fetched  supposition  indeed.  If  such  had  been 
the  object,  it  could  much  more  effectually  have  been  answered  by  a  proper  mode  of 
keeping  his  accounts.  I  can  see  no  good  reason  for  the  addition  of  '  agent,'  but  to  ren- 
der the  note  obligatory  on  the  company,  and  exclude  all  idea  of  individual  liability. 
This  is  the  plain  lajiguage  of  the  transaction ;  and  we  ought  to  give  it  the  obvious  mean- 
ing, and  not  entrap  men  by  the  mere  form  of  words.  This  mode  of  signing  the  note 
will  fairly  admit  of  this  construction  :  I,  as  agent  of  the  company,  pledge  their  credit, 
or  give  their  promise,  to  pay  the  note ;  or,  the  company  by  me  as  their  agent,  promise 
to  pay  it.  But  if  we  consider  the  word  agent  as  merely  descriptio  persome,  we  give  it  no 
operation,  and  really  expunge  it  from  the  writing.  We  are  bound,  however,  to  give  ef- 
fect to  every  word,  if  possible ;  and  the  only  way  to  give  this  word  any  effect  is,  to 
make  the  note  binding  on  the  company."  But  see  Macbean  v.  Morrison,  1  A.  K.  Marsh. 
545 ;  Kean  v.  Davis,  1  N.  J.  683,  1  Spencer,  425 ;  Wyman  v.  Gray,  7  Harris  &  J.  409  ; 
Hills  V.  Bannister,  8  Cowen,  31  ;  Brockway  v.  Allen,  17  Wend.  40,  Rathbon  v.  Bud- 
long,  15  Johns.  1 ;  Barker  v.  Mechanic  Ins.  Co.,  3  Wend.  94.  In  Mare  v.  Charles,  5 
Ellis  &  B.  978,  an  order  to  pay  to  the  drawer's  order  at  three  months  after  date  a  sum 
of  money  "  for  value  received  in  machinery  supi)lied  the  adventurers  in  H.  mines,"  was 
directed  "  to  Mr.  W.  C."  W.  C.  wrote  upon  it,  "  Accepted  for  the  company,  W.  C, 
Purser."  Held,  that  this  made  W.  C.  persoiuUly  liable  as  acceptor  of  the  bill.  But 
this  decision  proceeded  upon  the  ground,  that,  the  bill  having  been  directed  to  W.  C. 
alone,  the  company  could  not  be  bound  by  his  acceptance.  Lord  Campbell  said  :  "  The 
bill  is  drawn  on  the  defendant  as  an  individual ;  it  is  addressed  '  to  Mr.  W.  Charles.' 
It  is  true,  it  is  stated  to  be  drawn  for  value  supplied  to  the  adventurers  in  a  mining 
company  ;  but  it  is  drawn  on  Charles  as  an  individual.  He  writes  upon  it,  'Accepted 
ibr  the  company ' ;  and  he  signs  this  '  William  Charles,  Purser.'  If  the  words  of  an 
instrument  will  reasonably  bear  an  interpretation  making  it  valid,  we  must  not  construe 
them  so  as  to  make  it  void.     Benignce  Jliciendce  sunt  inter preiationes,  ut  res  magis  valecU 

Vol.  I.— G 


98  NOTES    AND   BILLS.  [CH.  V. 

tiori,  to  the  case  of  public  officers  or  agents  appointed  to  dis- 
charge public  trusts  and  duties. (/?)  Whether  a  note  made  in  the 
same  form,  by  the  duly  authorized  agent  of  a  private  person, 
would  be  the  note  of  the  principal,  or  of  the  agent,  is  not  so  cer- 


quam  pereat ;  et  verba  intentioni,  non  e  contra,  debent  inservire.  If  a  bill  be  drawn  on  mc, 
I  must  accept  it  so  as  to  make  myself  personally  liable,  or  not  at  all ;  for  no  one  but 
the  drawee  can  accept.  I  think,  therefore,  that  when  a  drawee  accepts  a  bill,  nnlcss 
there  be  on  the  face  of  the  bill  a  distinct  disclaimer  of  personal  liability,  he  must  be 
taken  to  accept  personally.  In  the  present  case,  the  acceptance  is  not  per  proc.  tho 
company.  If  it  were,  perhaps  that  might  have  some  weight  as  amounting  to  such  an 
absolute  disclaimer  of  personal  liability.  It  appears  on  the  fiice  of  the  bill  that  it  is 
drawn  on  account  of  a  debt  of  the  company  ;  it  is  very  likely  that  the  drawee  accepted 
on  account  of  the  company,  and  on  an  engagement  from  them  that  tlicy  would  keep 
him  in  funds  to  meet  the  bills.  In  that  case  he  may  well  be  said  to  accept  for  tiie  com- 
pany ;  but  then  it  is  an  acceptance  making  himself  personally  liable."  Cokridcje,  J. : 
"  The  bill  was  addressed  to  the  defendant,  and  no  one  else  could  accept  it.  He  wrote 
upon  it,  '  Accepted,'  and  signed  his  name.  He  now  says,  in  effect,  that  it  was  not  ac- 
cepted at  all,  and  that  what  he  wrote  amounted  to  a  refusal  to  accept ;  and  this  he  saj's 
is  the  effect  of  the  words  '  for  the  company.'  The  question  then  is,  Are  we  to  construe 
this  ut  res  magis  pereat,  as  not  an  acceptance  1  No  ;  we  must  construe  it,  ut  res  magis 
valeat ;  and,  as  my  lord  has  pointed  out,  it  is  easy  so  to  construe  it."  Wightman,  J. : 
"  The  bill  is  drawn  on  the  defendant  for  value  received  by  a  company.  The  defendant 
accepts  it,  adding  to  the  word  accepted,  '  for  the  company.'  He  may  have  accepted  it 
on  their  account,  and  relying  on  their  liability  to  him;  but,  whatever  was  his  motive, 
he  accepted  it,  and  cannot  now  ask  us  to  construe  the  acceptance  so  as  to  be  inopera- 
tive. Unless  he  accepted  the  bill,  drawTi  upon  liimself  personally,  in  the  sense  that  he 
rendered  himself  person.ally  liable,  he  did  not  accept  it  at  all ;  on  any  other  construc- 
tion, what  he  wrote  on  the  bill  must  have  amounted  to  a  refusal  to  accept  it.  But  it  is 
clear  that  he  did  intend  that  the  bill  should  not  be  dishonored,  but  accepted ;  and 
we  must  construe  what  he  has  written,  ut  res  magis  valeat."  See  Slielton  v.  Darling,  2 
Conn.  435.  And  see  Nicholls  v.  Diamond,  9  Exch.  154.  So  in  Rew  v  Pettct,  1  A.  & 
E.  196,  where  a  parish  vestry  resolved  to  borrow  money  from  H.  N.,  who  advanced  it, 
and  took  promissory  notes  for  the  amount,  made  by  the  defendants,  who  were  church- 
wardens and  overseers,  and  who  added  to  their  signatures  the  titles  of  their  respective 
offices  ;  it  was  held,  that  the  defendants  were  personally  liable.  But  this  also  was  u])on 
the  ground  that  the  parish  could  not  be  bound  ;  and  that,  unless  the  defendants  were 
held  personally,  the  note  must  be  treated  as  waste  paper.  Sec  further,  Cliick  v.  Tre- 
vett,  20  Maine,  462  ;  Fogg  v.  Virgin,  19  Maine,  352  ;  Pomeroy  v.  Slade,  IG  Vt.  220. 
In  Bradloe  v.  Boston  Glass  Co.,  16  Pick.  347,  a  note  was  given  in  this  form  :  '•  For 
value  received,  we,  the  subscribers,  jointly  and  severally,  promise,  &c.,  for  the  Boston 
Glass  Manufactory."  It  was  signed  by  II.,  G.,  and  K.,  without  annexing  to  their 
names  any  words  designating  a  connection  with  the  corporation ;  Imt  it  was  entered  in 
the  note-book  of  the  corporation  as  a  note  due  from  the  cor|)oration,  and  the  interest 
thereon  was  annually  paid  by  them.  It  was  held,  that  it  was  the  note  of  the  individuals 
by  whom  it  was  signed,  and  that  it  did  not  bind  the  corporation.  Stiaw,  C.  J.  said  : 
"As  the  forms  of  words  in  which  contracts  maybe  made  and  execulcd  are  almost  in- 

ip)  Jones  V.  LcTombc,  3  Dallas,  384  ;  Tutt  v.  Hobbs,  17  Misso.  48r  f  Fox  v.  Drake, 
g  Cowcn,  191. 


CH.  v.]  AGENTS.  99 

tain.  We  think,  however,  it  would  be  the  note  of  the  princi- 
pal.(ry)  If  such  an  agent  give  a  note,  beginning,  "  I  promise," 
<fec.,  and  signed  "  A,  for  B,"  it  has  been  decided,  in  several  cases, 
that  this  is  the  note  of  the  principal,  and  not  of  the  agent. (r) 


finitely  various,  the  test  question  is,  whctlicr  the  person  signing  professes  and  intends  to 
bind  himself,  and  adds  the  name  of  another  to  indicate  the  capacity  or  trust  in  which 
he  acts,  or  the  person  for  whose  account  his  promise  is  made;  or  whether  the  words 
referring  to  a  principal  are  intended  to  indicate  that  he  does  a  mere  ministerial  act,  in 
giving  effect  and  authenticity  to  the  act,  promise,  and  contract  of  another.  Does  the 
person  signing  apply  the  executing  hand  as  the  instrument  of  anotlicr,  or  the  promising 

and  engaging  mind  of  a  contracting  party  1 The  words  '  for  the  Boston  Glass 

Manufactory,'  if  they  stood  alone,  would  perhaps  leave  it  doubtful  and  ambiguous, 
whctlicr  they  meant  to  bind  themselves  as  promisors  to  pay  the  debt  of  the  company, 
or  whether  they  meant  to  sign  a  contract  for  the  company,  by  which  they  should  be 
bound  to  pay  their  own  debt ;  though  the  place  in  which  the  words  are  introduced 
would  rather  seem  to  warrant  the  former  construction.  But  other  considerations  arise 
fi-om  other  views  of  the  whole  tenor  of  the  note.  The  fiict  is  of  importance,  that  it  is 
signed  by  three  instead  of  one,  and  with  no  designation  or  name  of  ofSce  indicating 
any  agency  or  connection  with  the  company.  No  indication  appears  on  the  note  itself, 
that  either  of  them  was  president,  treasurer,  or  director,  or  that  they  were  a  committee 
to  act  for  the  company.  But  the  words  'jointly  and  severally  '  are  quite  decisive.  The 
persons  are  '  we,  the  subscribers,'  and  it  is  signed  Jonathan  Hunnewell,  Samuel  Gore, 
and  Charles  F.  Kupfer.  This  word  '  severally  '  must  have  its  effect ;  and  its  legal  ef- 
fect was  to  bind  each  of  the  signers.  This  fixes  the  undertaking  as  a  personal  one.  It 
would  be  a  forced  and  wholly  untenable  construction  to  hold  that  the  company  and 
signers  were  all  bound  ;  this  would  be  equally  inconsistent  with  the  terms  and  the  ob- 
vious meaning  of  the  contract."  See  Trask  v.  Roberts,  1  B.  Mon.  201  ;  Emerson  v. 
Providence  Hat  Manuf.  Co.,  12  Mass.  237;  Mann  v.  Chandler,  9  Mass.  335  ;  Packard 
i;.  Nye,  2  Met.  47  ;  Shotwell  v.  M'Kown,  2  South.  828. 

(q)  It  was  so  decided  in  Ballon  v.  Talbot,  16  Mass.  461. 

(?•)  Long  V.  Colburn,  11  Mass.  97  ;  Frost  v.  Wood,  2  Conn.  23;  Robertson  v.  Pope, 
1  Rich.  501  (overruling  Fash  v.  Ross,  2  Hill,  S.  Car.  294  ;  Taylor  v.  McLean,  1  Mc- 
Mnllan,  352;  Moore  v.  Cooper,  1  Speers,  87).  But  see,  contra,  Offutt  v.  Ayres,  7 
T.  B.  Mon.  356 ;  Musgrove  v.  McIIroy,  5  J.  J.  Marsh.  646  ;  Garrison  v.  Combs,  7  J.  J. 
JLarsh.  84.  In  Cook  v.  Sanford,  3  Dana,  237,  the  note  began,  "We  promise,"  &c., 
and  was  signed,  "  A,  for  B  &  Co."  Held,  that  A  was  not  personally  liable.  In  Early 
V.  Wilkinson,  9  Grat.  68,  the  note  began,  "  I  promise,"  &c.,  and  was  signed,  "  Robert 
H.  Early  [for  Samuel  H.  Early]."  Held,  that  the  note  upon  its  face  was  binding  upon 
Robert  H.  Early  personally.  Otherwise,  if  the  name  of  Samuel  H.  Early  had  not  been 
enclosed  in  brackets.  In  Rice  v.  Gove,  22  Pick.  158,  an  action  was  brought  against 
the  defendant  on  a  note  beginning,  "  For  value  received,  we  jointly  and  severally 
promise  to  pay,"  &c.,  and  signed,  "Patton  &  Johnson,  for  Ira  Gove."  The  plaintiff 
having  proved  that  P.  &  J.  were  authorized  to  give  notes  as  the  agents  of  the  defend- 
ant, the  court  held,  that  this  must  be  construed  as  the  note  of  the  defendant.  Deiccy,  J. 
said :  "  The  only  doubt  in  the  present  case  arises  from  the  introduction  of  the  words 
'jointly  and  severally'  in  the  notes.  These  words,  it  is  said, indicate  a  personal  prom- 
ise by  Patton  &  Johnson,  and  can  have  no  proper  application  to  a  promise  by  the 
defendant  alone.  If  there  were  not  other  words  in  the  contract  indicating  more 
strongly  the  purpose  to  bind  the  defendant  than  these  do  the  contrary  design,  perhaps 


100  NOTES   AND   BILLS.  [CH.  V 

Tliero  is  no  especial  mode,  recognized  by  law,  of  giving  au- 
thority to  make  or  accept  or  indorse  negotiable  paper.  It  may 
be  given  by  parol.  It  may  be  inferred  from  the  course  of  busi- 
ness and  employment ;  and  from  the  fact  that  similar  transac- 
tions have  been  repeatedly  recognized  by  the  principal  as  done 
by  his  authority.  Such  presumptions  frequently  arise  in  refer- 
ence to  the  acts  of  a  wife,  a  servant,  a  son,  or  a  clerk.  A  jury 
would  not  be  warranted  in  drawing  this  conclusion  from  one  or 
two  instances  of  such  recognition ;  but  only  from  such  and  so 
many  as  would  make  the  belief  of  such  authority  strong  and 
reasonable. (s) 

The  question  of  autliority,  or  of  evidence  of  authority,  so  far 
as  it  relates  to  the  obligation  of  the  principal,  must  always  be  de- 
termined by  the  principles  which  lie  at  the  foundation  of  the  law 
of  agency ;  namely,  that  a  person  is  bound  by  the  acts  of  another 

the  words  'jointly  and  severally  '  should  control  the  construction  to  be  given  to  these 
notes.  But  we  think  that  it  may  be  fairly  urged,  that  the  form  of  the  signature  of 
these  notes  so  clearly  manifests  the  purpose  to  be  the  execution  of  a  contract  binding 
solely  upon  the  defendant,  that,  if  either  is  to  be  rejected  as  surplusage  and  of  no  effect, 
it  should  be  the  words  'jointly  and  severally.'  The  case  of  Bradlee  v.  Boston  Glass 
Company,  16  Pick.  347,  is  supposed,  by  the  counsel  for  the  defendant,  to  bear  strongly 
upon  the  question.  It  does  so  upon  the  effect  to  be  given  to  the  words  'jointly  and 
severally,'  as  used  in  tlie  body  of  these  notes  ;  but  upon  a  particular  examination  of  the 
facts  of  that  case,  it  will  be  seen  that  the  signatures  to  that  contract  were  by  the  indi- 
vidual names  of  those  wlio  were  alleged  to  have  acted  as  agents,  and  were  accompanied 
with  no  designation  of  any  agency  annexed  to  their  names,  the  only  reference  to  any 
BUch  agency  being  found,  if  anywhere,  in  the  body  of  the  notes." 

(s)  In  Prcscott  v.  riinu,  9  Bing.  19,  where  it  appeared  that  the  defendants'  confiden- 
tial clerk  had  been  accustomed  to  draw  checks  for  them  ;  that  in  one  instance,  at  least, 
they  had  authorized  him  to  indorse  ;  and  in  two  other  instances  had  received  money 
obtained  by  his  indorsements  in  their  name  ;  it  was  Iwkl,  that  a  jury  was  warranted  iu 
inferring  that  the  clerk  had  a  general  authority  to  indorse.  And  see  Trundy  v.  Farrar, 
32  Maine,  225.  In  Valentine  v.  Packer,  5  Penn.  State,  333,  in  an  action  on  a  note  of 
a  firm,  conducting  iron- works,  signed  by  one  T.,  it  was  shown  that  T.  was  the  son  of 
one  member  of  the  firm  and  ne])licw  of  two  others  ;  that  he  was  their  bookkeeper  and 
manager  at  the  time  the  note  was  given  ;  that  it  was  not  customary  for  clerks  to  give 
notes,  tliougli  one  witness  knew  of  its  being  done  by  T.  Ilthl,  that  this  evidence  was 
sufficient  to  entitle  the  plaintiff  to  read  the  note  to  the  jury.  In  Paige  v.  Stone,  10  Met. 
160,  in  a  suit  against  two  principals  on  a  negotiable  note,  of  which  (hey  had  no  knowl- 
edge before  action  brought,  given  in  their  names  by  their  agent,  who  had  no  express 
authority,  nor  any  authority  by  necessary  implication  from  the  nature  of  his  business, 
to  give  such  note;  it  was  hrlJ,  that  evidence  of  tlie  agent's  having  given  two  similar 
notes,  to  the  first  of  which  one  only  of  the  principals  afterwards  assented,  and  the  last 
of  which,  for  a  small  «um,  the  |)rincij)als  directed  to  be  settled  after  they  were  sued 
upon  it,  was  not  sufficient  to  prove  the  autliority  of  the  agent  to  bind  them  by  the  third 
note.     Sec  Odiorne  j;.  Maxcy,  13  Mass.  178,  15  Mass.  39. 


CH.  v.]  AGENTS.  101 

as  his  agent,  if,  in  the  first  place,  he  has  actually  authorized  the 
act,  or  if,  in  the  second  place,  lie  has  authorized  those  with  whom 
the  agent  dealt  on  his  behalf  to  believe,  as  fair  and  reasonable 
men,  that  the  authority  had  been  actually  given.  On  tiiis  last 
ground,  where  an  acceptor's  defence  was,  that  the  drawer  had 
forged  the  acceptor's  signature,  evidence  that  the  defendant  had 
previously  paid  such  acceptances  was  held  to  be  proof  of  his  au- 
thority to  the  drawer  to  accept  for  him.(/) 

A  ratification  of  an  act  has,  in  general,  the  same  effect  as 
a  previous  authority ;  (u)  and  this  ratification  may  be  by  parol 
only.  And  it  is  an  almost  universal  rule,  that  the  ratification 
must  be  made  with  a  full  knowledge  on  the  part  of  the  principal 
of  the  facts  affecting  his  rights. (y)  And  if  a  person  does  an  act 
purporting  to  act  as  agent  for  another,  a  third  person  cannot 
afterwards  adopt  that  act,  and  make  the  person  who  did  it  his 
agent. (i6')  Nor  will  any  ratification,  however  effectual  to  bind 
the  principal,  discharge  the  liability  of  the  agent,  if  he  had  not 
authority  to  represent  the  principal  when  he  did  so. (2;)     It  is, 


(0  Barber  v.  Gingcll,  3  Esp.  60.  In  Cash  v.  Taylor,  Lloyd  &  W.  Merc.  Cas.  178, 
in  an  action  against  the  acceptor  of  a  bill  of  exchange,  it  appeared  that  the  ac- 
ceptance was  not  in  the  handwriting  of  tlie  defendant  himself,  but  in  that  of  a  brother- 
in-law  of  his,  named  Alfred  Tallent ;  that  other  bills,  accepted  by  Tallent  in  the 
defendant's  name,  had  been  paid  by  him ;  and  that  a  letter  had  been  written  by  the 
defendant's  authority,  before  the  date  of  the  bill  sued  upon,  to  the  holder  of  another 
similar  bill,  who  was  pressing  the  defendant  for  payment ;  in  which  letter  it  was  stated 
that  the  defendant  had  long  been  in  the  habit  of  indorsing  bills  for  Tallent,  and  that 
he  had  given  that  person  authority  to  act  generally  for  him  in  his  dealings  with  London 
houses ;  and  that  he,  the  defendant,  would  therefore  of  course  take  up  the  bill  which 
was  the  subject  of  the  letter,  if  the  holder  enforced  payment  of  it.  But  it  also  appeared 
that  the  plaintifj"liad  not  had  any  communication  with,  or  knowledge  of,  the  defendant, 
and  was  not  aware  that  any  other  bills  had  been  accepted  for  him  by  A.  Tallent.  It 
was  held,  that  the  defendant  was  not  liable.  The  court  said :  "  The  plaintiff  knew 
nothing  of  the  letter  given  in  evidence,  or  of  the  acceptance  of  similar  bills  for  the 
defendant  by  Tallent ;  he  did  not,  therefore,  take  the  bill  in  question  on  the  faith  of 
Tallcnt's  authority  to  accept.  That  being  so,  he  was  bound  to  make  out  that  Tallent 
had  either  a  general  authority  to  accept,  subsisting  unrevoked  at  the  time  of  this  accept- 
ance, or  a  particular  authority  to  accept  the  bill  in  question.  It  is  not  contended  that 
there  was  any  proof  of  the  latter ;  and  the  letter  furni>hed  no  proof  of  a  general  au- 
thority :  it  cannot  be  carried  beyond  the  particular  bill  to  which  it  referred."  See 
""Jewcllyn  v.  Winckworth,  13  M.  &  W.  .598. 

(u)  Bigelow'i^.  Denison,  23  Vt.  564. 

(v)  Nixon  V.  Palmer,  4  Scld.  398  ;  Fletcher  v.  Dysart,  9  B.  Mon.  413. 

{w)  See  Wilson  r.  Tumman,  6  Man.  &  G.  236. 

(x)  Rossiter  v.  Rossiter,  8  Wend.  494. 
9» 


10-2  NOTES  AND   BILLS.  [CH.  V. 

however,  generally  true,  that  if  the  prhicipal  is  bound,  the  agent 
is  not.(y) 

It  is  a  general  rule,  m  regard  to  simple  contracts,  that  parol 
evidence  may  hi  received  to  make  unnamed  principals  liable, 
or  to  gi\e  them  the  benefit  of  the  contract ;  for  this  leaves 
the  actual  party  liable  as  before,  and  therefore  cannot  be  con- 
sidered as  varying  the  contract.  But  such  evidence  cannot  be 
received  to  discharge  the  actual  signer  on  the  ground  of  his 
agency,  for  this  would  be  to  vary  the  contract,  (c^)  In  reference 
to  negotiable  paper,  however,  the  rule,  as  we  have  seen,  is 
more  strict.  For  parol  evidence  is  not  admissible,  either  to 
discharge  an  actual  signer,  or  to  charge  one  whose  name  does 
not  appear  on  the  instrument,  (a)  The  reason  for  this  is,  that, 
from  the  nature  and  purpose  of  negotiable  paper,  no  person 
should  be  held  as  a  party  to  it  whose  name  is  not  written 
upon  it,  as  such  paper  ought  to  contain  in  itself  all  its  own 
evidence,  and  thus  be  independent  of  extrinsic  proof. 

One  who  puts  his  name  on  negotiable  paper  will  be  liable 
personally,  as  Ave  have  seen,  although  he  acts  as  agent,  unless 
he  says  so,  and  says  also  who  his  principal  is ;  that  is,  unless 
he  uses  some  expression  equivalent,  to  use  Lord  Ellcnhorous^li's 
language,  to  "  I  am  the  mere  scribe."  For  if  the  construction 
may  fairly  be,  that  while  he  acts  officially,  or  at  the  request 
of  others,  or  for  the  benefit  of  others,  yet  what  he  docs  is  still 
his  own  act,  it  will  be  so  interpreted.  Thus,  if  a  bill  direct 
the  proceeds  to  be  placed  "  to  the  account  of  the  Durham 
Bank,  as  advised,"  (6)  or  where  the  drawee  is  called  "  cashier " 


(y)  Mann  v.  Chandler,  9  Mass.  335 ;  Shelton  v.  Darling,  2  Conn.  435. 

(z)  Sec  1  Parsons  on  Cont.  48,  note  a. 

(a)  See  SM/Jja,  p.  93,  note  h ;  per  Metcalf,  J.,  in  Fuller  v.  Hooper,  3  Gray,  334. 

(6)  In  Lcadbitter  v.  Farrow,  5  M.  &  S.  345,  an  agent  of  the  Diirliani  Bank,  to 
whom  tlie  plaintiff  sent  a  sum  of  money,  in  order  to  procure  a  hill  u])ou  London, 
drew  a  hill  in  his  own  name  for  the  amount,  and  sent  it  to  tlie  plaintifl';  it  was  lield, 
that  the  agent  was  linhlo  as  drawer,  although  the  plaintiff  knew  that  he  was  agent, 
and  supposed  that  the  hill  was  drawn  i)y  him  as  sucli  and  on  account  of  the  Durham 
BaTik,  to  whi(;h  the  agent  paid  over  the  money.  Lord  Ellcnboroiir/h  said  :  "Is  it  net 
an  universal  rule,  that  a  man  who  puts  his  name  to  a  bill  of  exchange  tiierchy 
makes  himself  personally  liahlc,  unless  he  states  upon  the  face  of  the  hill  that  lio 
suhscrihes  it  for  another,  or  hy  procuration  of  another,  which  are  words  of  exclu- 
sion ?  Unless  he  says  plainly,  '  I  am  the  mere  scribe,'  he  becomes  liable.  ?ow, 
in  the  jjrcsent  case,  although  the  plaintiff  knew  the  defendant  to  be  agent  to  the 
Durham  Bank,  he  might  not  know  but  tiiat  he  meant  to  offer  his  own  responsibility. 


CH.  V.J  AGENTS.  103 

of  a  certain  company,  and  direction  is  given  that  tlic  money 
be  placed  to  the  account  of  that  company,  and  the  bill  is  ac- 
cepted by  the  drawee  by  direction  of  the  company,  tlie  drawee 
is  still  personally  held.{c)  Nor  does  it  generally  seem  to  make 
any  difference  that  the  agency  was  actually  known  to  the  parties 
who  hold  the  agent  liable. 

Tlie  peculiar  character  of  negotiable  paper  has  induced  courts 
to  enforce  the  liability  of  an  agent  somewhat  strictly ;  as  if 
a  broker,  who  sells  goods  for  an  owner,  draws  on  the  buyer 
in  favor  of  the  owner,  if  this  bill  be  dishonored,  it  has  been 
held  that  the  owner  may  sue  the  broker  on  it,  as  drawer  •,{d) 
and  generally,  it  seems,  an  agent  who  draws  in  favor  of  his 
principal,  and  directs  the  money  to  be  put  to  the  debit  of  his 
principal,  will  nevertheless  be  held  personally  liable  to  his  prin- 
cipal, unless  he  protects  himself  by  appropriate  and  definite 
language,  (e) 


Every  person,  it  is  to  be  presumed,  who  takes  a  bill  of  the  drawer,  expects  that  his 
responsibility  is  to  be  pledged  to  its  being  accepted.  Giving  full  eifect  to  the  circum- 
stance that  the  plaintiff  knew  the  defendant  to  be  agent,  still  the  defendant  is  liable, 
like  any  other  drawer  who  puts  his  name  to  a  bill  without  denoting  that  he  does  it  in 
the  character  of  procurator.  The  defendant  has  not  so  done,  and  therefore  has  made 
himself  liable.  I  do  not  say  whether  an  action  would  lie  against  the  Durham  Bank, 
because,  considering  it  in  either  way,  it  would  not,  as  it  seems  to  me,  affect  the  liability 
of  the  defendant."  Holroyd,  J.  said  :  "  I  apprehend  that  no  action  would  lie  on  the  bill, 
except  against  those  who  are  the  parties  to  it."  In  Sowerby  v.  Butcher,  2  Cromp.  & 
M.  368,  a  broker  at  N.  shipped  a  cargo  of  coals,  and  drew  a  bill  of  exchange  on  the 
consignees  in  favor  of  the  vendors.  The  bill  being  returned  by  the  drawees  in  conse- 
quence of  the  shortness  of  the  date,  the  vendors,  by  the  direction  of  the  broker,  drew 
another  bill  at  a  longer  date.  It  was  taken  to  the  broker's  counting-house  for  signature, 
but  the  broker  having  left  N.  in  consequence  of  embarrassments,  the  defendant,  his 
brother,  who  had  come  there  to  investigate  his  affairs,  at  the  request  of  the  vendors  and 
for  their  convenience,  signed  the  second  bill  generally.  Held,  that  he  was  personally 
liable  on  the  bill.  It  was  objected  for  the  defendant,  that  he  did  not  profess  to  act,  nor 
could  be  treated,  as  an  agent;  and  that  the  bill,  as  to  him,  was  without  consideration. 
Wc  tiiink  there  was  much  force  in  the  objection.  See  further,  Beckham  v.  Drake,  9 
M.  &,  W.  79;  Beckham  v.  Knight,  1  Man.  &  G.  738. 

(c)  Thomas  v.  Bishop,  2  Stra.  9.5.5. 

(d)  Le  Fevre  v.  Lloyd,  5  Taunt.  749.  In  this  case  the  court  said  :  "  The  broker  by 
giving  this  bill  put  an  end  to  all  doubt  as  to  the  buyer's  responsibility.  The  vendore. 
upon  receiving  it,  in  consequence  of  their  good  opinion  of  Lloyd,  dismiss  from  their 
minds  all  care  about  the  solvency  of  the  purchaser." 

(e)  In  Goupy  v.  Harden,  7  Taunt.  159,  it  was  held  that  an  agent  purchasing  for- 
eign bills  for  his  principal,  and  indorsing  them  to  him,  without  qualification,  is  liable 
to  his  princijjal  on  his  indorsement,  however  small  be  the  commission  which  he  gets 
upon  the  purchase      And  Dallas,  J.  said :    "  The  defendants  might  have   specially 


104  KOTES   AND    BILLS.  [CH  V. 

It  sliould  be  remarked,  however,  that  the  soundness  of  these 
decisions  has  been  questioned,  and  it  woidd  seem  with  some 
reason,  Mr.  Chitty  says :  "  These  decisions,  subjecting  an  agejit 
to  personal  liability,  as  regards  tliird  persons,  ignorant  of  the 
circumstances  under  which  tlie  agent  became  a  party,  are 
consistent  with  the  other  principles  of  law  applicable  to  these 
instruments.  But  it  seems  questionable  whether  even  at  law 
it  is  correct  to  allow  an  employer  to  recover  from  liis  agent 
under  such  circumstances,  because  in  general,  between  original 
parties,  it  may  be  shown  as  a  good  defence  at  law,  that  the 
bill  was  drawn,  accepted,  or  indorsed  for  the  plaintiff's  accom- 
modation, or  for  a  purpose  or  consideration  which  has  failed 
or  been  satisfied ;  and  to  allow  such  a  principal  to  recover  at 
law  against  his  agent,  is  only  to  compel  the  latter  to  resort 
to  a  court  of  equity  for  relief,  which  might  just  as  well  be 
afforded  at  law,  and  a  court  of  equity  \n\\  certainly  afford 
relief." (/)  This  reasoning  lias  been  adopted  in  Pennsylvania, 
and  the  authority  of  the  English  decisions  to  the  contrary  en- 
tirely repudiated.  It  is  there  held  that  a  factor  wlio  remits 
a  bill  to  his  principal  in  payment  of  goods  sold  on  his  account, 
and  indorses  the  bill,  does  not  thereby  become  personally  re- 
sponsible to  his  prmcipal,  if  he  receives  no  consideration  for 
guaranteeing,  and  does  not  expressly  undertake  to  do  so.(^) 


indorsed  this  bill  sans  recours,  if  tlicy  had  tliouglit  fit  so  to  do,  hut  they  have  not  done 
it."     And  sec  Sim])Son  v.  Swan,  3  Camp.  291  ;   Heubach  v.  Mollniann,  2  Ducr,  227. 

(f)  Chitty  on  Bills,  9tli  ed.,  p.  .34.  The  learned  author  eiics  in  support  of  this 
proposition,  Kidson  v.  Dilworth,  5  Price,  .564,  and  Ex  parte  Uohinson,  1  Buck,  113. 
In  the  foi-mer  ease,  a  solicitor,  who  was  employed  by  an  administrator  in  {getting:  in 
debts  due  to  the  estate  of  the  intestate,  having  i-eceived  money  in  the  course  of  his 
afiency,  which  it  was  his  duty,  according  to  his  instructions,  to  remit  to  his  employer, 
jirocurcd  for  that  purpose  a  banker's  bill,  which  was  accidentally  drawn  in  his  favor,  so 
iliat  it  became  necessary  that  he  should  indorse  it,  and  he  did  so.  Ihbl,  that  ii  court 
of  e(|uity  would  restrain  an  action  commenced  against  him  on  such  indorsement, 
whether  brought  by  the  immediate  indorsee,  or  by  any  other  person  who  had  notice  of 
the  facts.  In  Ex  parte  Robinson,  it  was  held,  that  when  a  person  employed  to  get  a 
1)11!  discounted,  being  unable  to  effect  it  without  indorsing  it,  therefore  indorsed  it  in 
his  own  name,  he  was  entitled  to  be  iiidcmnificd  by  his  cm])loyer,  though  the  name  of 
the  latter  was  not  on  the  bill. 

(y)  Mechanics'  Bank  v.  Earp,  4  IJiiwle,  384,  389  ;  Sharp  v.  Emmet,  :>  Wliart  288. 
In  the  last  case,  Sirijmnt,^.  said  :  "  I'ormcrly  there  seems  to  have  been  in  thf  Ijiw  mer 
chant  a  severe  and  inflexil)lc  rule  ap])lied,  that  whenever  an  agent  or  factor  indorsed  a 
hill,  he  was  liable  on  his  indorsement,  unless  lie  took  care  at  the  time  to  limit  his  rf  • 
Bponsibilily,  by  stating  that  it  was  'sans  recours,'  or  by  jirocuration,  or  some  similar 


CH.  v.]  AGENTS.  105 

In  a  case  in  the  House  of  Lords,  on  appeal  from  Scotland, 
where  a  factor,  under  a  del  credere  commission,  sold  jroods 
and  took  accepted  bills  from  the  purchasers,  which  he  ex 
changed  for  a  hill  on  London,  payable  to  his  own  order  ;  and 
this  last  he  hidorsed  and  transmitted  to  his  principal ;  it  was 
held  that  the  factor  was  answerable  for  the  amount  of  the  bill. 
"  being  personally  liable,  under  his  commission  del  credere,  to 
satisfy  his  principal  the  price  of  the  goods  sold."(/f) 

An  agent  is  personally  liable  on  the  contract  he  makes,  if 
he  makes  himself  so  expressly,  or  if  he  transcends  his  author- 
ity, or  if  lie  departs  from  its  terms  and  directions,  or  if  lie 
conceals  his  character  of  agent,  or  if  he  purposely  conceals 
the  name  of  his  principal,  or,  perhaps,  if  he  does  not  actually 
state  the  name  of  his  principal  ;  and  these  general  principles 
would  no  doubt  apply  to  the  acts  of  an  agent  in  relation  to 
negotiable  paper.  It  is  expressly  held,  that  the  rule  which 
denies  to  an  agent  generally  the  power  of  delegating  his  au- 
thority to  another  applies  to  promissory  notes. (i)  But  this 
rule  must  be  understood  with  proper  limitations.  An  agent 
cannot  delegate  any  portion  of  his  power  requiring  the  exercise 
of  discretion  and  judgment ;  but  it  is  otherwise  as  to  powers 
or  duties  merely  mechanical  in  their  nature.  Therefore,  if 
an  agent  be  empowered  to  bind  his  principal  by  an  accom- 
modation acceptance,  he  may  direct  another  to  write  it,  having 
first   determhied  the  propriety  of  the  act  himself;  and  it  will 

mode.  The  authorities  cited  by  Mr.  Justice  Rogers,  in  Mechanics'  Bank  v.  Earp,  and 
those  referred  to  in  the  argument  here,  sufficiently  show  this.  But  it  is  equally  certain, 
that  in  more  modern  times  the  severity  of  this  rule  has  been  relaxed  ;  and  it  is  now 
held,  that  between  the  agent  and  the  principal,  the  agent  remitting  u  bill  for  payment 
with  his  indorsement  is  not  obliged,  in  order  to  exempt  himself,  to  do  so  in  exj)ress 
terms  on  the  face  of  tiie  indorsement.  Such  a  restriction  is  objectionable  in  many  in- 
stances, as  calculated  to  throw  a  doubt  over  the  responsibility  of  the  prior  pai-ties,  and 
to  discredit  them  with  those  who  may  see  the  indorsement.  The  rule  is,  that  the  in- 
dorsement of  the  factor  must  be  construed  by  the  circumstances  under  whidi  it  is  made  ; 
and  unless  there  be  something  to  show  that  in  indorsing  he  intended  to  render  himself 
personally  liable,  or  that  he  was  bound  to  do  so,  it  ought  not  to  be  so  intended.  A 
factor  remitting  a  bill  to  his  principal  in  payment  of  goods  sold  on  his  account,  and 
receiving  no  consideration  for  guaranteeing  the  bill,  nor  undertaking  to  do  so,  is  not 
personally  responsible  merely  on  his  indorsement  " 

(A)  Mackenzie  v.  Scott,  6  Bro.  V.  C.  280.  But  see  as  to  this  case,  Sharp  i".  Emmet, 
s?\pra ;  Lcverick  v.  Meigs,  1  Cowen,  64.5. 

(i)  Emerson  ;;.  Providence  Hat  Manufacturing  Co.,  12  Mass.  237;  Brewster  v.  Ho- 
^art,  15  Pick.  302. 


too  NOTES   AND   BILLS.  [CH.  V. 

biiid  tl\e  principal,  it  seems,  although  it  names  the  delegate, 
and  not  the  agent,  as  the  one  exercising  the  power. (j)  Nor 
does  the  rule,  it  seems,  apply  to  a  partner. (^) 

A  general  authority  to  transact  business,  even  if  it  be  ex- 
pressed in  words  of  very  wide  meaning,  will  not  be  held  to 
include  the  power  of  making  the  principal  a  party  to  nego- 
tiable paper.  Tlierefore,  a  power  given  to  a  copartner,  upon 
the  dissolution  of  the  firm,  to  receive  all  debts  owing  to,  and 
pay  those  owing  from,  the  late  partnership,  does  not,  it  has 
been  held,  authorize  him  to  indorse  a  bill  of  exchange  in  the 
name  of  the  partnership,  though  drawn  by  him  in  that  name, 
and  accepted  by  a  debtor  of  the  partnership  after  the  disso- 
lution. (/)  And  a  power  of  attorney  given  by  an  executrix, 
to  act  for  her  generally  as  executrix,  does  not  authorize  the 
accepting  of  bills  of  exchange  in  her  behalf,  thougli  for  debts 
due  from  her  testator. (w)  So  if  full  authority  be  given  to 
an  attorney  to  ask,  demand,  and  receive  all  money  that  may 
become  due  to  the  principal  on  any  account  whatsoever,  and 
to  "  transact  all  business,"  this  will  not  authorize  the  attorney 
to  indorse  bills  received  in  payment,  (w)  So  a  power  of  attor- 
ney authorizing  an  agent  to  demand,  sue  for,  recover,  and 
receive,  by  all  lawful  ways  and  means  whatsoever,  all  moneys, 
debts,  and  dues  whatsoever,  and  to  give  sufficient  discharges, 
does  not  authorize  him  to  indorse  bills  for  his  principal. (o) 

Where  a  power  of  attorney  gave  tlie  agent  full  powers  as  to 
the  management  of  certain  specified  real  property,  with  general 


(j)  Commercial  Bank  i;.  Norton,  I  Hill,  501.     And  sec  ante,  p.  84,  note  r. 

(k)  Tillicr  v.  Wliiteiiead,  1  Dallas,  269.  In  this  case  it  was  resolved,  "  that  one  of 
two  i)artucrs  may  give  an  autliority  to  a  clerk  under  tlie  firm  of  tiie  liousc ;  and  that 
the  clerk  may,  in  consequence  tiiercof,  accept  hills,  and  sign  or  indorse  notes,  in  the 
name  of  the  company.  And  it  was  said  by  M'Kmn,  C.  J.,  that  this  case  could  not  bo 
properly  compared  witli  the  case  of  an  attorney  without  power  of  substitution  ;  for  the 
attorney  cannot  exceed  the  letter  of  his  autliority,  being  notiiing  more  tium  an  agent 
himself  But  each  partner  is  u  principal ;  and  it  is  implied  in  the  very  nature  of  their 
connection,  that  eacii  has  a  right  to  depute  and  ajipoiiit  a  clerk  to  act  for  both,  in  mat- 
ters relative  to  their  joint  interest." 

(/)  Kilgour  V.  Fiiilyson,  1  II.  Bl.  l.'>5.     Sccjws/,  pp.  144-147. 

(w)  Gardner  v.  Baillie,  6  T.  U.  591,  overruling  Howard  v.  Baillie,  2  H.  Bl.  018,  so 
far  as  the  two  cases  are  inconsistent. 

(h)  Hogg  V.  Snnith,  1  Taunt.  347  ;  Hay  i'.  Goldsmid,  2  J.  P.  Smith,  79,  cited  also 
in  Hogg  V.  Hnaitli,  I  Taunt.  347. 

(o)  Murray  i;.  Esist  India  Co.,  5  B.  &  Aid.  204. 


CH.  v.]  AGENTS.  107 

words  extending  those  powers  to  all  the  property  of  the  principal 
of  every  description,  and,  in  conclusion,  authorized  the  agent  to 
do  all  lawful  acts  concerning  all  the  principal's  business  and 
affairs,  of  what  nature  or  kind  soever,  it  was  held  that  this  did 
not  authorize  tlie  agent  to  indorse  bills  of  exchange  in  the  name 
of  the  principal. (;?)  But  where  A,  the  proprietor  of  a  cotton 
factory,  gave  a  letter  of  attorney  to  B,  conferring  on  him  the 
agency  of  the  factory  for  five  years,  empowering  him  to  purchase 
any  articles  for  the  use  of  the  factory,  and  engaging  to  become 
responsible  for  all  contracts  entered  into  by  him  in  the  capacity 
of  agent,  for  machinery  and  cotton  for  the  use  of  the  factory  ;  it 
was  held,  that  A  was  liable  on  a  promissory  note  given  by  B,  as 
the  agent  of  A,  and  in  his  name,  for  money  borrowed  by  the  for- 
mer, within  the  term,  and  to  effect  the  object,  of  his  agency.  It 
may  be  found  difiicult  to  reconcile  this  decision  with  the  current 
of  authorities  upon  the  subject,  and  we  have  some  doubts  whether 
it  can  be  supported. (r/) 

So  carefully  is  this  authority  watched,  that,  where  power  is 
given  to  do  some  things  with  regard  to  promissory  notes  or 
bills,  it  cannot  be  enlarged  by  construction  to  do  other,  though 
somewhat  similar,  things.  Thus,  the  authority  to  draw  is  not, 
of  itself,  an  authority  to  indorse  bills  ;  (r)  nor  would  it  be  to 
accept  them.  (5)  And  an  authority  to  draw,  indorse,  or  accept 
for  a  party,  does  not  permit  the  agent  to  bind  his  principal 
together  with  others  as  copartners  ;  (t)  nor  to  put  his  name  to 
mere  accommodation  paper  for  other  parties. (m)     The  presump- 


(p)  Esdaile  v.  La  Nauze,  I  Younge  &  C,  Exch.  394. 

(q)  Frost  v.  Wood,  2  Conn.  2.3. 

(r)  Robinson  v.  Yarrow,  7  Taunt.  455 ;  Murray  v.  East  India  Co.,  5  B.  &  Aid.  204; 
Prescott  V.  Fiinn,  9  Bing.  19. 

(s)  Attwood  V.  Munnings,  7  B.  &  C.  278,  1  Man.  &  R.  66. 

(I)  Attwood  V.  Mannings,  7  B.  &  C.  278,  1  Man.  &  R.  66.  And  see  Stainback  v. 
Read,  11  Grat.  281. 

(«)  Wallace  v.  Branch  Bank,  1  Ala.  h&5.  In  this  case  it  was  held  that  an  attorney, 
"with  full  power  and  authority,  for  me,  aiid  in  my  name,  to  draw  or  to  indorse  prom- 
issory notes,  to  accept,  draw,  or  indorse  bills  of  exchange,"  has  no  authority  to  draw 
or  indorse  notes  for  the  mere  accommodation  of  third  persons.  So  a  power  of  attor- 
ney, "  in  my  name  and  behalf  to  sign  and  indorse  notes  payable  and  negotiable  at  the 
branch  bank,"  &c.  "as  well  for  discount  as  collection,  and  to  check  all  money  which 
may  be  deposited  therein  to  my  credit,  from  time  to  time,  until  this  authority  is  re- 
Toked,"  was  held  not  to  authorize  an  original  indorsement  as  security  for  a  third  per- 
son.    Nichols  V.  State  Bank,  3  Yerg.  107;  Nichol  v.  Green,  Peck,  283.     But  where 


108  NOTES   AND    BILLS.  [CH.  V. 

tion  of  the  law  limits  such  authority  to  the  acting  in  the  prin- 
cipal's own  business,  and  for  his  own  benefit. (y)  But  if  an 
agent  be  authorized  generalhj  to  execute  notes  in  the  name 
and  for  the  benefit  of  his  principal,  and  he  executes  notes  in 
his  principal's  name  for  the  fraudulent  purpose  of  raising  mon- 
ey for  his  own  use,  such  notes  will,  nevertheless,  be  binding 
upon   the   principal,  in   the   hands   of  a   hotia  fide    holder,  (ir) 


a  witness  testified  that  he  was  the  general  agent  of  a  firm,  intrusted  with  the  sole 
charge  of  their  business,  and  that  as  such  he  had  been  in  the  habit  of  drawing  drafts 
and  making  notes  and  indorsements  for  them,  this  was  held  suflScient  to  go  to  the  jury 
as  a  ground  for  inferring  that  he  had  autliority  to  bind  his  principals  by  au  accommo- 
dation acceptance,  tliough  the  power  conferred  on  him  by  the  articles  of  copartnership 
did  not  extend  so  far,  and  he  had  never  attempted  to  bind  the  firm  in  that  way.  Com- 
mercial Bank  v.  Norton,  1  Hill,  501. 

(y)  North  River  Bank  v.  Aymar,  3  Hill,  262;  Stainback  v.  Read,  11  Grat.  281  ; 
Stainer  v.  Tysen,  3  Hill,  279  ;  Stainback  v.  Bank  of  Virginia,  1 1  Grat  269.  But  see 
Bank  of  Bengal  v.  Macleod,  7  Moore,  P.  C.  35 ;  Bank  of  Bengal  v.  Fagan,  7  Moore, 
P.  C.  61. 

(w)  North  River  Bank  v.  Aymar,  3  Hill,  262.  In  this  case,  P.  gave  J.  a  letter  of 
attorney  autliorizing  the  latter,  among  other  things,  to  draw  and  indorse  notes  in  the 
name  and  for  the  benefit  of  the  former ;  and  the  letter  was  deposited  with  a  bank, 
through  which  it  was  expected  some  of  the  business  would  be  done.  Various  notes 
and  indorsements  were  subsequently  made  by  J. ;  all  of  which  purported  on  their  face 
to  have  been  executed  for  P.  in  conformity  with,  and  in  pursuance  of,  the  letter  of 
attorney.  In  trutli,  however,  the  notes  had  no  connection  witii  P.'s  business,  but  were 
given  for  the  accommodation  of  third  persons,  who  indorsed  tlicm  to  tlie  bank  in  which 
the  letter  of  attorney  had  been  deposited  ;  the  latter  receiving  them  in  the  regular 
course  of  business,  without  notice,  and  for  a  valuable  consideration,  lldd,  that  P.  was 
liable  to  the  bank  on  tlie  notes ;  though  as  between  him  and  J.  they  were  unauthorized 
and  fraudulent.  Nelson,  C.  J.  dissented.  The  judgment  in  this  case  is  said  to  have 
been  afterwards  reversed  in  the  Court  of  Errors.  But  we  think  the  decision  of  the 
Supreme  Court  was  correct.  See  the  observations  of  Coinstocl;J.,'\n  Mechanics'  Bank 
V.  New  York  &  New  Haven  Railroad  Company,  3  Kern.  632,  ct  srq.  In  Bank  of 
Bengal  r.  Macleod,  7  Moore,  P.  C.  35,  and  Bank  of  Bengal  v.  Fagan,  7  Moore,  P.  C. 
61,  tlie  payee  of  promissory  notes  of  the  East  India  Company,  by  a  ))owcr  of  attornej', 
authorized  his  agents  at  Calcutta  to  "sell,  indorse,  and  assign  "  the  notes.  The  agents, 
in  their  character  of  private  bankers,  borrowed  money  of  the  Bank  of  Bengal,  ofTcring, 
as  security,  these  promissory  notes.  The  bank  made  the  advance,  and  the  agents  in- 
dorsed the  notes,  in  tiie  name  of  their  princii)al,  and  deposited  tiiem  with  the  iiank,  by 
way  of  collateral  security  for  their  personal  liai)ility  ;  at  the  same  time  authorizing  the 
bank,  in  default  of  payment,  to  sell  the  notes  in  reimbursement  of  the  advances.  Held, 
that  the  indorsement  of  the  notes  by  the  agents  of  the  payee  to  the  bank  was  within  the 
scope  of  the  authority  given  to  them  by  the  power  of  attorney.  Lord  l3roii<]h(im  said  : 
"It  is  said  that  the  indorsement  was  only  to  bo  made  for  the  benefit  of  the  principal, 
and  not  for  the  purposes  of  the  agent.  Wc  do  not  see  how  this  very  materially  affect* 
the  case,  for  it  only  refers  to  the  use  to  be  made  of  the  funds  obtained  from  the  indorse- 
ment, not  to  the  power;  it  relates  to  the  purpose  of  the  execution,  not  to  the  limits  of 
the  power  i'self ;  and  though  the  indorsee's  title  must  depend  n[ion  the  aiithoriiy  of  tno 


CH.  v.]  AGENTS.  109 

But  the  principal  would  not  be  held,  if  the  holder  had  notice 
or  knowledge  of  the  fraud. (x) 

If  one  signs  his  name  to  a  bill  or  note,  leaving  a  blank  for  the 
sum,  and  intrusts  it  to  another,  this  is  prima  facie  evidence  of 
authority  ;  in  England,  to  insert  any  sum  that  the  stamp  will 
cove]',  and  for  any  purpose  ;  and  in  this  country,  to  insert  an 
indefinite  sum.(y/)  As  between  the  immediate  parties,  and  all 
others  who  have  notice  of  any  limitation  in  the  authority,  this 
presumption  may  be  rebutted  ;  (c)  but  as  to  bona  fide  purchasers 
without  notice,  it  is  conclusive.  And  it  is  immaterial  that  the 
holder  knew  that  the  note  was  signed  in  blank,  if  he  had  no 
notice  that  the  authority  to  fill  the  blank  was  limited. (a)  Such 
a  blank  signature  is  a  letter  of  credit  for  an  indefinite  sum  ;  it  is 


inclorser.  it  cannot  be  made  to  depend  upon  the  purposes  for  which  the  indorser  per- 
forms his  act  under  the  power."  In  the  case  of  Exchange  Bank  v.  Monteath,  17  Barb. 
171,  where  an  agent,  wlio  derived  a  general  authority  to  bind  his  principal  by  bills  and 
notes  from  the  nature  and  course  of  his  employment,  and  not  from  a  written  power, 
drew  a  bill  ia  the  name  of  Iiis  principal  for  the  accommodation  of  a  tliird  person,  it 
was  litld,  that  the  principal  was  liable  upon  the  bill,  in  an  action  brought  by  a  honajide 
holder.  And  see  Mann  v.  King,  6  Munf.  428;  Stainback  v.  Bank  of  Virginia,  11  Grat 
269  ;  Stainback  v.  Read,  11  Grat.  281  ;  Newland  v.  Oakley,  6  Yerg.  489. 

(x)  Stainer  v.  Tysen,  3  Hill,  279.  In  this  case,  D.  executed  a  letter  of  attorney  au- 
thorizing G.  to  draw  and  indorse  notes  for  and  in  the  name  of  the  former.  Afterwards 
G.,  being  a  member  of  a  firm  largely  indebted  to  the  plaintiff  and  utterly  insolvent, 
but  with  which  D.  had  no  connection,  applied  to  the  plaintiff  for  a  compromise,  and 
terms  were  agreed  on ;  whereupon  G.  made  a  note  in  D.'s  name,  payable  to  the  firm, 
and  delivered  it  to  the  plaintiff  by  Avay  of  perfecting  the  compromise.  Held,  in  an 
action  against  D.,  that  the  plaintiff  could  not  be  deemed  to  have  i-eccived  the  note  bona 
fide ;  and  as  G.  had  given  it  without  authority,  the  action  could  not  be  maintained. 
So  in  Stainback  v.  Bank  of  Virginia,  11  Grat.  269,  a  power  of  attorney  was  given  to 
an  agent,  to  draw,  indorse,  or  accept  bills,  and  to  make  and  indorse  notes,  negotiable 
at  a  particular  bank,  in  the  name  of  the  principal.  Held,  that  a  party  dealing  with  the 
agent,  with  knowledge  or  means  of  knowledge  that  under  such  power  he  was  indors- 
ing the  name  of  his  principal  for  his  own  benefit,  was  not  entitled  to  recover  from  the 
principal ;  and  that  the  fact  that  the  attorney  was  the  drawer  of  the  bill  upon  which  he 
indorsed  the  name  of  his  principal,  held  the  bill  at  the  time  it  was  discounted  by  the 
holder,  and  that  the  proceeds  were  passed  to  his  credit,  were  of  tlicmselves  full  proof 
that  the  attorney  was  acting  for  his  own  benefit,  and  not  that  of  his  principal.  And 
see  Stainback  v.  Read,  11  Grat.  281. 

(y)  Russel  v.  Langstaffe,  2  Dougl.  514;  Collis  v.  Emett,  1  II.  Bl.  313;  Violett  i-. 
Patton,  5  Cranch,  142. 

(s)  Hatch  V.  Searles,  2  Smale  &  G.  147  ;  Johnson  v.  Blasdale,  1  Smedes  &  M.  17  ; 
Hempliill  v.  Bank  of  Alabama,  6  Smedes  &  M.  44  ;  Goad  v.  Hart,  S  Smedes  &  M.  787; 
Hall  v.  Commonwealth  Bank,  5  Dana,  258. 

(a)  Huntington  v.  Branch  Bank,  3  Ala.  186;  Russel  v.  Langstaffe,  supra.  But  806 
Hatch  V.  Searles,  supra. 

VOL.   I.  10 


110  NOTES   AND   BILLS.  [CH.  V. 

saying  to  the  public,  "  Trust  A.  B.  to  any  amount,  and  I  will  be 
his  security." (6)  Therefore  it  would  be  no  defence  against  a 
bona  fide  holder  to  prove,  either  that  tlie  person  to  whom  the 
instrument  was  intrusted  had  no  authority  at  all  to  fill  the 
blank  ;  or  that  his  authority  was  limited  to  a  certain  sum,  which 
he  had  exceeded  ;  (c)  or  that  he  was  only  authorized  to  use  the 
paper  for  a  particular  purpose,  and  had  fraudulently  converted 
it  to  a  different  purpose  ;  {d)  or  that  he  was  only  authorized  to  fill 

(6)  Per  Lord  Mansfield,  in  Russel  v.  Langstaffe,  supra. 

(c)  Thus,  in  Fullerton  v.  Sturges,  4  Ohio  State,  529,  P.  and  others,  sureties  of  C, 
signed  an  instrument  payable  to  S.  or  order,  in  blank  as  to  the  date,  amount,  and  time 
of  payment,  but  with  a  private  agreement  that  it  shonld  not  bo  filled  for  more  than 
S  1,000  or  S  1,500,  and  delivered  it  to  C,  the  principal,  to  procure  the  discount.  Sub- 
sequently, the  instrument  was  presented  by  C.  to  S.,  the  payee,  and  filled  up  and  dis- 
counted for  the  sura  of  $  10,000.  Held,  that  one  who  intrusts  his  name  in  blank  to 
another  to  procure  a  discount  is  liable  to  the  full  extent  to  which  such  other  may  see 
fit  to  bind  him,  when  the  paper  is  taken  in  good  foith,  without  notice,  actual  or  con- 
structive, that  the  authority  given  has  been  exceeded  ;  that  such  signature  iu  blank 
has  the  effect  of  a  general  letter  of  credit ;  and  the  rule  is  founded  as  well  on  that 
general  principle,  which  casts  the  loss,  when  one  of  two  innocent  persons  must  suffer, 
upon  him  who  has  put  it  in  the  power  of  another  to  do  the  injury  ;  as  also  upon  the 
rule,  in  the  law  of  agency,  which  makes  the  princij)al  liable  for  the  acts  of  his  agent, 
in  violation  of  his  private  instructions,  when  he  has  held  the  agent  out  as  possessing 
more  enlarged  authority.  And  see,  to  the  same  effect,  Roberts  v.  Adams,  8  Port.  Ala. 
297;  Herbert  v.  Huie,  1  Ala.  18;  Decatur  Bank  v.  Spence,  9  Ala.  800.  But  see 
infra,  p.  113,  notes  g  and  h. 

(d)  Putnam  v.  Sullivan,  4  ^Lass.  45,  is  an  important  and  leading  case  upon  this 
point.  That  was  an  action  by  indorsees  against  indorsers  of  a  promissory  note.  It  ap- 
peared that,  one  of  the  defendants  being  abroad  in  Euro])e,  the  other,  having  occasion  to 
make  a  journey  from  Boston  to  Philadelphia,  intrusted  to  a  clerk  of  the  house  several 
]iapers,  indorsed  i)y  the  firm  in  blank,  to  be  used  by  tlie  clerk  when  money  was  to  bo 
advanced  on  the  sale  of  goods  by  the  house  on  commission,  or  to  renew  the  notes  of  the 
house  when  due  at  the  banks.  He  was  directed  to  deliver  one  of  the  blanks  to  the 
promisor  upon  the  note  sued  on  in  this  action,  to  enable  him  to  renew  a  note  signed 
by  him,  then  in  the  bank,  of  which  the  house  were  indorsers,  and  for  which  he  had 
requested  a  l)lank  to  be  left.  The  promisor  called  on  the  clerk  for  tlie  blank  indorse- 
ment left  for  him,  and  one  was  delivered  to  him  ;  afterwards,  pretending  tliat  by  some 
mistake  it  had  become  useless  to  him,  and  feigning  to  burn  in  tlic  clerk's  presence  the 
name  of  the  firm  indorsed,  he  procured  another  blank,  .ind,  by  a  similar  pretension  and 
contrivance,  a  third  and  fourth,  the  last  of  which  was  in  fact  used  for  the  purpose  for 
which  the  house  had  directed  a  blank  indorsement  to  be  given  to  him.  He  iiad  used 
one  of  the  prior  blanks  for  making  the  note  sued  on  in  this  action  ;  which  had  been 
negotiated,  with  tlic  indonsement  remaining  in  blank,  to  tlie  plaintiffs.  Parsons,  C.  J. 
said  :  "  It  is  objected  that  this  note  ought  to  be  considered  as  a  forgery  of  the  names  of 
the  indor.'-ers  ;  because  a  note  was  afterwards  written  on  the  face  of  the  paper  by  the 
promisor,  not  only  without  the  direction  or  consent  of  the  defendants,  but  against  theii 
exi)rcss  instruction  ;  and  therefore  it  was  a  false  and  fraudulent  alteration  of  a  writ,  ng, 
to  the  prejudice  of  the  indorsers.     This  objection  would  have  great  weight,  if,  when  the 


en.  V.J  AGENTS.  Ill 

the  blank  upon  a  certain  condition,  which  had  not  happened  ;  (e) 
or  that  the  authority  was  limited  in  point  of  time,  and  that  the 
time  had  expired. (/)  This  we  regard  as  the  settled  law  in  this 
country  ;  but  in  England,  according  to  some  recent  decisions,  it 


indorsers  put  the  name  of  the  firm  (jn  the  paper,  they  had  not  intended  that  something 
ehouhl  afterwards  be  written,  to  which  the  name  should  apply  as  an  indorsement;  for 
then  the  paper  would  have  been  delivered  over,  unaccompanied  by  any  trust  or  con- 
fidence. If  the  clerk  had  fraudulently,  and  for  his  own  benefit,  made  use  of  all  the 
indorsements  for  making  promissory  notes  to  charge  the  indorsers,  we  are  of  opinion 
that  this  use,  though  a  gross  fraud,  would  not  be  in  law  a  forgery ;  but  a  breach  of 
trust.  And  for  the  same  reason,  when  one  of  these  indorsements  was  delivered  by  the 
clerk,  who  had  the  custody  of  tiiem,  to  the  promisor,  who  by  (;ilse  pretences  had 
obtained  it,  the  fraudulent  use  of  it  would  not  be  a  forgery  ;  because  it  was  delivered 
with  the  intention  that  a  note  should  be  written  on  the  face  of  the  paper  by  the  prom- 
isor, for  the  purpose  of  negotiating  it  as  indorsed  in  blank  by  the  house.  And  we  must 
consider  a  delivery  by  the  clerk,  who  was  intrusted  with  a  power  of  using  these  indorse- 
ments (although  his  discretion  was  confined)  as  a  delivery  by  one  of  the  house  ; 
whether  he  was  deceived,  as  in  the  present  case,  or  had  voluntarily  exceeded  his  direc- 
tion. For  the  limitation  imposed  on  his  discretion  was  not  known  to  any  one  but 
to  himself  and  to  his  principals.  It  is  further  objected,  that,  if  the  writing  of  this  note 
under  these  circumstances  is  not  a  forgery,  yet  it  is  such  a  fraud  as  will  discharge  the 
indorsers  against  an  innocent  indorsee.  The  counsel  for  the  defendants  agree  that 
generally  an  indorsement  obtained  by  fraud  shall  hold  the  indorsers  according  to  the 
terms  of  it ;  but  they  make  a  distinction  between  the  cases  where  the  indorser  through 
fraudulent  pretences  has  been  induced  to  indorse  the  note  he  is  called  on  to  p.ay,  and 
where  he  never  intended  to  indorse  a  note  of  that  description,  but  a  different  note  and 
for  a  different  purpose.  Perhaps  there  may  be  cases  in  which  this  distinction  ought  to 
prevail.  As  if  a  blind  man  had  a  note  falsely  and  fraudulently  read  to  him,  and  he 
indorsed  it,  supposing  it  to  be  the  note  read  to  him.  But  we  are  satisfied  that  an 
indorser  cannot  avail  himself  of  this  distinction,  but  in  cases  whei'e  he  is  not  chargeable 
with  any  laches  or  neglect,  or  misplaced  confidence  in  others.  Here,  one  of  two  inno- 
cent parties  must  suffer.  The  indorsees  confided  in  the  signature  of  the  defendants, 
and  they  could  have  no  reason  to  suppose  that  it  had  been  improperly  obtained.  The 
note  was  openly  offered  to  the  plaintiffs  by  a  broker,  and  when  they  objected  on 
account  of  the  absence  of  both  the  indorsers,  they  were  answered,  on  the  information  of 
the  promisor,  whose  character  then  stood  fair,  that  blank  indorsements  had  been  left 
with  the  clerk,  and  that  the  indorsers  had  before  indorsed  a  number  of  notes  for  the 
same  person,  which  had  been  negotiated  by  a  broker.  On  the  other  hand,  the  loss  has 
been  occasioned  by  the  misplaced  confidence  of  the  indorsers  in  a  clerk,  too  young  or 
too  inexperienced  to  guard  against  the  arts  of  the  promisor."  And  sec,  to  the  same 
effects,  Roberts  i-.  Adams,  8  Port.  Ala.  297  ;  Herbert  v.  Huie,  1  Ala.  18  ;  Huntington 
V.  Branch  Bank,  3  Ala.  186 ;  Decatur  Bank  v.  Spence,  9  Ala.  800. 

(e)  But  see  infra,  p.  113,  notes  </  and  A. 

(./')  Thus,  in  Montague  v.  Perkins,  C.  B.  18.53,  22  Eng.  L.  &  Eq.  516,  it  was  held, 
that  a  person,  by  giving  another  a  blank  acceptance,  makes  him,  as  to  third  parties,  his 
general  agent  to  fill  up  the  bill  to  the  extent  the  stamp  will  cover,  and  he  is  bound  by 
his  acceptance  in  the  hands  of  an  innocent  holder  for  value  ;  therefore,  to  an  action  by 
an  indorsee  for  value  without  notice  against  the  acceptor,  it  is  no  defence  that  the  accept- 
ance was  given  in  blank  to  the  drawer,  and  that  the  bill  was  not  filled  up  and  issued 


112  NOTES   AND    BILLS.  [CH.  V. 

is  not  so  certain.  Thus,  it  has  been  directly  decided  there,  that 
if  the  autliority  to  fill  the  blank  was  upon  a  condition,  which  has 
uot  been  satisfied,  this  will  be  a  complete  defence,  even  against 


until  an  unreasonable  time  (twelve  years)  after.  During  the  argument,  Cressivell,  J., 
interrupting  counsel,  said  :  "  Tliis  does  not  differ  from  tlie  case  of  a  merchant  employ- 
ing an  agent  to  sell  a  cargo  of  cotton  for  him,  the  agent  being  held  out  to  tlie  world  as 
having  a  general  authority  to  sell.  His  principal  may  have  given  him  private  instruc- 
tions, but  if,  in  selling,  the  agent  violates  his  instructions,  his  principal  is  nevertheless 
bound."  Jtrvis,  C-  J.,  in  delivering  his  opinion,  said  :  "  It  is  admitted  by  my  brother 
C/iannrll,  that  the  giving  a  blank  acceptance  is  evidence  of  an  authority  to  the  party  to 
whom  it  is  given  to  fill  up  the  bill  for  the  amount,  and  it  may  be  for  the  time,  to  which 
the  stamp  extends  ;  but  he  contends  that  the  authority  so  given  is  an  authority  to  till 
it  up  within  a  reasonable  time,  and  that  as  the  autliority  in  this  case  was  not  pursued 
in  that  res])ect,  the  party  giving  the  acceptance  is  uot  liable.  I  think  that  is  not  the 
case  with  reference  to  the  rights  of  a  bona  jide  holder  for  value.  The  rules  applicable 
to  the  question  of  authority  on  this  bill  of  exchange  do  not  differ  from  those  which 
ought  to  govern  the  question,  if  it  arose  in  the  ordinary  case  between  princii)al  and 
agent.  In  the  case  of  a  blank  acceptance,  prima  facie  the  person  giving  it  gives  the 
per>on  to  whom  it  is  given  an  opportunity  to  fill  it  up  for  the  amount  and  for  the  time 
limited  by  the  stamp  laws.  As  between  those  two,  there  may  be  secret  stipulations 
binding  upon  them,  but  not  binding  as  between  the  public  and  the  person  giving  tho 
blank  acceiitancc.  As  said  by  Lord  Elltnhorougli,  in  Cruchlcy  v.  Claranee,  2  Maule  & 
S.  90,  the  defendant  has  chosen  to  send  the  bill  into  the  world  in  that  form,  and  the 
world  ought  not  to  be  deceived  by  his  acts.  How  does  this  differ  from  the  ordinary  case 
of  an  agent,  held  out  to  the  public  at  large  as  competent  to  contract  for  and  to  hind  his 
principal  ?  The  agent  may  have  secret  instructions,  but,  notwithstanding  he  deviates 
from  them,  the  principal  is  bound  by  his  acts.  So  here,  the  defendant,  when  he  put  tho 
blank  acceptance  into  Swinburn's  hands,  gave  the  latter  power  to  issue  it  as  if  he  had 
a  general  and  unlimited  authority  ;  and  the  defendant  must  be  bound  by  the  acts 
of  his  agent  to  whom  he  gave  this  power.  This  is  what  is  said  by  Lord  Mmisjield,  in 
Russel  0.  Langstaffe,  that  an  indorsement  on  a  blank  note  is  a  letter  of  credit  for  an  in- 
definite sum.  The  cases  of  Temple  v.  Pullen,  8  E.xch.  389,  and  Mulliall  v.  Neville,  8 
Exch.  391,  arc  not  at  variance  with  this.  For  tiiese  reasons,  I  am  of  o])inion  that  the 
rule  must  be  absolute  to  enter  the  verdict  for  the  plaintiff."  Matile,  J.:  "I  tliink  so 
too.  The  defendant,  when  he  wrote  his  name  in  blank  and  issued  this  acceiitance,  must 
liave  known,  what  was  obvious  to  anybody,  that  he  put  it  in  the  power  of  any  person 
to  whom  he  gave  it  to  fill  it  up,  and  pass  him  off  as  having  acccjucd  the  bill  for  any 
amount  at  any  time  warranted  by  the  stamp.  He  must  be  taken  to  have  intended  the 
natural  consetpience  of  his  act  If  this  were  not  so,  and  a  bona  Jide.  holder  were  not  to 
be  protected,  then  a  person  who  had  used  the  utmost  care  might  be  subjected  to  a  loss, 
in  order  to  relieve  another  who  had  used  no  care,  but  had  put  the  person  to  wlioin  he 
gave  the  acceptance  in  a  position  to  imjjosc  upon  the  most  iimocent  anil  cautious.  No 
case  has  been  cited  which  decides  the  contrary  ;  and  I  think  we  may  without  any  con- 
flict with  [ircvious  cases,  and  in  aflirmance  of  a  princi|)Ie  of  mercantile  law  in  favor  of 
the  negotiability  of  these  instruments,  and  to  protect  innocent  holders  for  value,  decide 
that  the  defendant  is  liable,  and  that  this  rule  should  be  made  absolute."  Crrsswi'II, 
J. :  "I  entirely  agree  to  this.  A  person  who  gives  another  ])ossession  of  his  signature 
on  a  bill  slaini),  jirimn  ficic  authorizes  the  latter  as  his  agent  to  lill  it  uj),  and  give  to 
the  world  the  bill  as  accepted  by  him.     Ho  enables  his  agent  to  represent  himself  tc 


CH.  v.]  AGENTS.  113 

a  bona  fide  holder. (i,'-)  So,  if  the  authority  be  limited  to  a 
partieular  sum,  and  a  larger  sum  be  inserted,  it  has  been  decided 
by  all  the  judges  of  England  that  tliis  will  be  forgery. (//)  We 
think  the  rule  established  in  this  country  is  just  and  rational. 


tlie  world  :is  acting  with  a  general  authority  ;  and  he  cannot  say  to  a  bona  Jidi  liolder 
for  value,  who  h:is  no  notice  of  any  secret  stipulations,  that  there  were  secret  sti]iuIation3 
between  liimself  and  the  agent,  any  more  than  can  a  principal,  in  the  case  already  \)nX, 
where  he  enables  his  agent,  buying  or  selling  on  his  behalf,  to  represent  himself  a,s  act 
iug  under  a  general  authority."  See  also  Temple  v.  PuUen,  8  Exch.  389  ;  Midliall  v 
Neville,  8  Exch.  31)1. 

[ij]  Awde  V.  Bixon,  6  Exch.  869.  In  this  case,  the  defendant  agreed  to  join  hi* 
brother  ia  making  a  promissory  note  for  his  accommodation,  provided  K.  would  alst 
join.  The  defendant  accordingly  signed  an  instrument  in  the  form  of  a  promissoi'y 
note,  a  blanii  being  left  for  the  name  of  the  payee.  R.  refused  to  join,  and  afterwards 
the  defendant's  brother  delivered  the  imperfect  instrument  to  the  plaintiif  for  value, 
representing  that  he  had  authority  to  deal  with  it,  and  the  plaintiff's  name  was  inserted 
as  payee.  Htld,  that  the  plaintiff  could  not  recover  on  this  note  against  the  defendant; 
and,  semhle,  that,  under  such  circumstances,  the  insertion  of  the  plaintiff's  name  as 
payee  rendered  the  instalment  a  forgery.  Pnrke,  B.  said :  "  It  is  unnecessary  to  say 
whether  this  instrument  is  a  forgery  or  not,  but  there  is  certainly  ground  for  contending 
that  the  making  of  it  complete,  contrary  to  the  directions  of  the  defendant,  renders  it  a 
false  instrument  as  against  him.  I  do  not  gainsay  the  position,  that  a  person  who  puts 
his  name  to  a  blank  paper  impliedly  authorizes  the  filling  of  it  up  to  the  amount  that 
the  stamp  will  cover.  But  this  is  a  different  case  Here  the  instrument,  to  which  the 
defendant's  name  is  attached,  is  delivered  to  his  brother,  with  power  to  make  it  a  com- 
plete instrument,  on  one  condition  only,  that  is,  provided  Kobinson  would  be  a  joint 
surety  with  him.  This,  therefore,  is  an  instance  of  a  limited  authority,  where,  in  case 
of  a  refusal  by  Robinson  to  join,  there  is  a  countermand.  Robinson  refused  to  join, 
and  consequently  the  defendant's  brother  had  no  authority  to  make  use  of  the  instru- 
ment. A  party  wlio  takes  such  an  incomplete  instrument  cannot  recover  upon  it, 
unless  the  person  from  whom  he  receives  it  had  a  real  authority  to  deal  with  it.  There 
was  no  such  authority  in  this  case,  and  unless  the  circumstances  show  that  the  defend- 
ant conducted  himself  in  such  a  way  as  to  lead  the  plaintiff  to  believe  that  the  defend- 
ant's brother  had  authority,  he  can  take  no  better  title  than  the  defendant's  brother 
could  give.  The  maxim  of  law  is,  '  Nemo  plus  juris  in  alium  transferre  potest  quam 
ipse  habet.'  It  is  a  fallacy  to  say  that  the  plaintiff  is  a  bona  fide  holder  for  value  ;  he 
has  taken  a  piece  of  blank  paper,  not  a  promissory  note.  He  could  only  take  it  as  a 
note  under  the  authority  of  the  defendant's  brother,  and  he  had  no  authority,  conse- 
quently the  instrument  is  void  as  against  the  defendant." 

(h)  Rex  V.  Hart,  1  Moo.  C.  C.  486;  Regina  v.  Wilson,  1  Den.  C.  C.  284.  In 
^wde  V.  Dixon,  supra,  Parke,  B.,  interrupting  counsel,  said :  "  Suppose  Richard 
Dixon  had  authority  to  fill  up  the  instrument  with  £  100,  and  he  inserted  .£200,  would 
the  defendant  be  liable  ?  In  the  case  of  Rex  i\  Hart,  all  the  judges  were  unanimously 
of  opinion,  that  where  a  blank  acceptance  is  delivered  to  a  person,  with  authority  to  fill 
it  up  with  a  particular  sum,  and  he  inserts  a  larger  sum,  he  is  guilty  of  forgery.  Re- 
gina V.  Wilson  is  an  authority  to  the  same  effect."  Alderson,  B.  said :  "  A  blank  ac- 
ceptiince  is  not  of  itself  an  authority  to  make  a  complete  bill,  but  only  evidence  of 
authority.  Molloy  v.  Delves,  7  Bing.  428.  Here  the  defendant  signed  his  name  to  a 
piece  of  paper,  giving  his  brother  authority  to  make  it  a  promissory  note  on  certain 

V«L.  I.— 11 


114  NOTES   AND   BILLS.  [CH.  V. 

It  should  be  noted,  however,  that  it  is  confined  to  cases  where 
the  signature  is  intrusted  to  another  person  fur  some  purpose. 
And  we  are  incUned  to  think  that  it  should  be  confined  to  cases 
where  the  person  to  whom  the  signature  is  intrusted  is  authorized 
to  Jill  the  blank,  in  some  form,  ov  for  some  purpose.  If  so,  proof 
that  he  had  no  authority  to  fill  the  blank  in  any  form,  or  for  any 
purpose,  would  be  a  complete  defence.  As  if  a  blank  signature 
were  given  to  a  servant,  to  be  carried  to  a  bank  and  delivered  to 
the  cashier,  and  the  servant  should  fill  the  blank  and  negotiate 
it.  If  a  person  sign  notes  in  blank,  and  lock  them  up  in  his 
safe,  whence  they  are  stolen,  filled  up,  and  negotiated,  without 
fault  or  negligence  on  his  part,  he  is  not  liable. (?)  Possibly,  it 
might  be  held  otherwise,  if  he  make  and  sign  a  perfect  note, 
payable  to  bearer,  and  it  be  stolen  under  similar  circumstances  ; 

terms  ;  he  makes  it  a  note  on  other  terms  ;  then  how  does  that  differ  from  the  case  of 
signing  his  brother's  name  ?  It  would  be  strange  if  this  transaction  amoimted  to  for- 
gery, and  yet  we  should  hold  this  a  true  instrument." 

(i)  Nance  v.  Lary,  5  Ala.  370.  In  this  case,  the  defendant  and  one  Langford  being 
about  to  execute  a  bond  in  blank,  the  latter  produced  a  sheet  of  paper  u])ou  wiiich  the 
defendant  signed  his  name,  whereupon  Langford  suggested  that  the  signature  was  so 
far  from  the  bottom  of  the  paper,  that  there  might  not  be  room  for  the  bond  to  bo 
written  above  it,  and  produced  another  sheet  for  the  defendant  to  sign,  so  as  to  leave 
Buflicieut  room  for  the  intended  bond.  Langford,  with  apparent  carelessness,  slipped 
the  first  sheet  aside,  and  signed  the  other  with  the  defendant,  who  carried  it  to  the 
clerk  of  the  court  to  be  filled  up,  leaving  the  former  with  Langford,  under  the  impres- 
sion that  it  had  been  or  would  be  destroyed.  Subsequently,  Langford  caused  the  note 
upon  which  the  present  suit  was  brought  to  be  written  over  the  blank  signature  of  the 
defendant  retained  by  him,  and  negotiated  it  to  the  plaintiff.  Collier,  C.  J.  said  :  "  The 
making  of  the  note  by  Langford  was  not  a  mere  fraud  upon  the  defendant ;  it  was 
something  more.  It  was  quite  as  much  a  forgery  as  if  he  had  found  the  blank,  or  pur- 
loined it  from  the  defendant's  possession.  If  a  recovery  were  allowed  upon  such  a 
state  of  facts,  then  every  one  who  ever  indulges  the  idle  habit  of  writing  his  name  for 
mere  pastime,  or  leaves  sufficient  space  between  a  letter  and  his  subscription,  might  be 
made  a  bankrupt  by  having  promises  to  pay  money  written  over  his  signature.  Such 
a  decision  would  be  alarming  to  the  community,  has  no  warrant  in  law,  and  cannot 
receive  our  sanction."  In  Montague  v.  Perkins,  C.  B.  185.3,  22  Eng.  L.  &  Eq.  ."iie,  cited 
supra,  Cresswell,  J.,  interrupting  Bijlrs,  Sergeant,  aiy/iioido,  said:  "  Suppose  the  defend- 
ant had  lost  his  blank  acceptance,  would  he  have  been  liable  upon  it  if  the  finder, 
without  Ids  authority,  had  filled  it  up  ?  "  Bi/les.  "  Yes,  to  an  indorsee  for  value,  with- 
out notice  ;  as  where  A,  by  false  representations,  induced  B  to  sign  his  name  to  a 
blank  stamped  paper,  which  A  afterwards  secretly  filled  up  as  a  promissory  note  for 
jC  100,  and  iinluced  C  to  advance  him  £100  on  it,  Garrow,  Ji.  held,  that  C  had  his 
remedy  on  the  note  against  B.  Ilex  v.  Kcvett,  Byles  on  Bills,  10.3,  filli  edition." 
Tills  case  is  stated  too  briefly  to  enable  one  to  gather,  with  suflicieiit  precision,  the 
actual  state  of  the  facts.  But  if  it  is  an  authority  for  the  projiosition  for  which  the 
learned  Sergeant  cites  it,  wc  think  it  unsound. 


CH.  V]  AGENTS.  115 

on  the  ground  that,  when  the  instrument  is  once  perfected,  (al 
though  it  has  never  passed  out  of  the  maker's  hands,  and  con- 
sequently has  had  no  inception  as  a  contract,^  it  is  like  money, 
and  any  one  who  receives  it  in  good  faith  and  for  a  valuable  con- 
sideration acquires  a  perfect  title,  (j) 

When  a  bill  or  note  is  given  in  blank,  it  is  not  necessary  that 
the  blank  should  be  filled  by  the  person  to  whom  it  is  imme- 
diately intrusted.  It  may  be  negotiated  in  blank,  and  any  bona 
fide  holder  may  insert  the  amount  advanced  by  him  on  the  faith 
of  the  signature. (A;) 

If  a  note  be  made  payable  so  many  days  or  months  after  date, 
and  the  date  be  left  blank,  the  maker  will  be  bound,  in  favor  of 
a  bona  fide  holder  without  notice,  by  any  date  which  the  payee 
chooses  to  insert. (Z)  But  if  the  payee,  to  accelerate  the  time  of 
payment,  inserts  a  date  anterior  to  the  time  of  making  the  note, 
it  seems  that  it  will  be  void  in  the  hands  of  any  party  who 
received  it  with  notice  that  it  was  antedated.  The  reasonable 
construction  of  such  an  instrument  is,  that  it  is  to  bear  date  only 
from  the  time  when  it  is  negotiated  ;  and  the  face  of  the  note  is 
notice  of  this.(?») 

A  power  to  make  notes  for  discount  does  not  extend  to  the 
power  of  renewing  the  same  notes,  (ri)     And  a  power  to  put  the 

[j)  Worcester  County  Bank  v.  Dorchester  &  Milton  Bank,  10  Cush.  488 ;  Gould 
V.  Segee,  5  Duer,  260.  But  see  Hall  v.  Wilson,  16  Barb.  548,  where  an  opinion  was 
intimated,  that  until  delivery  the  instrument  was  of  no  more  effect  than  a  blank  piece 
of  paper.     The  case  was  decided  on  another  ground. 

(k)  Schultz  V.  Astley,  2  Bing.  N.  C.  544;  Herbert  v.  Huie,  1  Ala.  18;  Huntington 
V.  Branch  Bank,  3  Ala.  186. 

(/)  Androscoggin  Bank  i;.  Kimball,  10  Cush.  373;  Mechanics'  &  Farmers'  Bank  v 
Schuyler,  7  Cowen,  337,  note  a. 

(m)  Goodman  v.  Simonds,  19  Misso.  106.  But  see,  contra,  Mitchell  v.  Culver,  7 
Cowen,  336. 

{n)  Ward  v.  Bank  of  Kentucky,  7  T.  B.  Mon.  93.  A  power  to  renew  a  note  at  sixty 
or  ninety  days  will  authorize  the  renewal  of  the  note  at  eighty-eight  days,  there  being 
no  violation  of  the  object  and  intention  of  the  parties.  Bank  of  So.  Car.  v.  Herbert,  4 
McCord,  89.  See  Bank  of  So.  Car.  v.  M'Willie,  4  McCord,  438.  But  where  A  au- 
thorized B  to  sign  his  name  to  a  note  for  $  250,  payable  in  six  months,  and  B  put  A's 
name  to  a  note  for  that  sum,  payable  in  sixty  days  ;  it  was  held,  that  A  was  not  liable. 
Batty  V.  Carswell,  2  Johns.  48.  And  an  authority  given  by  a  fiither  to  his  son  to  accept 
in  his  name  a  bill  of  exchange  for  $  2,000  to  be  used  for  a  particular  purpose,  will  not 
warrant  him  in  accepting  a  bill  for  a  part  of  the  amount  given  for  another  purpose. 
Nixon  j;.  Palmer,  4  Seld.  398.  In  Hortons  v.  Townes,  6  Leigh,  47,  A,  by  letter  of 
•ttorney,  authorized  B  to  put  his  name  to  or  upon  any  negotiable  note,  as  maker  or 
indcrser,  for  the  purpose  of  getting  the  same  discounted  at  one  or  other  of  certain 


116  NOTES    AND   BILLS.  [CH.  V. 

name  of  the  priucipal  to  a  note  payable  at  a  certain  bank  does 
not  authorize  the  use  of  his  name  upon  a  note  payable  specifically 
elsewhere,  or  indeed  upon  any  note  not  payable  specifically  at 
that  bank.(o)  Nor  can  supercargoes  bind  their  principals  by 
drawing  a  bill  on  the  principals,  and  then  accepting  it  in  their 
name,  without  special  authority  to  do  so  ;  nor  would  the  power 
to  accept  bills  drawn  on  their  principals  by  others,  be  derived 
from  their  employment  as  supercargoes. (^) 

The  same  may  be  said  of  masters  of  ships  (7)  or  steamboats. (r) 
Nor  has  an  ordinary  merchant's  clerk  any  authority  to  bind 
his  employer  by  signing  a  bill   or  note  in  his  name.(.s)     Nor 


specified  banks,  to  the  amount  of  $  3,000,  and  then  for  renewal  of  sucli  note  at  bank, 
from  time  to  time,  so  as  the  amount  shall,  at  no  one  time,  exceed  $  3,000.  B  made  a 
note  for  $  3,000  accordingly,  which  was  discounted  at  bank,  and  renewed  from  time  to 
time,  but  was  at  length  reduced  to  $  1 ,000  ;  and  then  B  purchased  groceries  of  C,  and 
for  the  price  thereof  gave  him  a  note  in  A's  name,  negotiable  at  one  of  the  specified 
banks.  Hekt,  that  this  last  note  was  not  within  B's  autliority.  And  semble,  that  hia 
authority  was  exhausted  by  the  making  of  the  first  note  for  $  3,000. 

(o)  Morrison  v.  Taylor,'6  T.  B.  Mon.  82. 

(p)   Scott  V.  M'Lellan,  2  Greenl.  199. 

(q)   Bowen  v.  Stoddard,  10  Met.  375. 

(r)  May  v.  Kelly,  27  Ala.  497. 

(s)  Terry  v.  Fargo,  10  Johns.  114.  In  Smith  v.  Gibson,  6  Blackf.  369,  it  was  helct, 
that  an  agent  for  attending  to  and  managing  a  grocery  and  provision  store,  &c.,  is  not, 
in  consequence  of  suc'h  agency,  authorized  to  draw  or  indorse  notes  in  the  name  of  his 
principal.  In  Davidson  v.  Stanley,  2  Man.  &  G  721,  it  was  laid,  that  the  bailiff  of  a 
large  fanning  establishment,  through  whose  hands  all  payments  and  rcceii)ts  take  place, 
has  no  implied  authority  to  pledge  the  credit  of  his  employer  by  drawing  and  indorsing 
bills  of  exchange  in  the  name  of  the  latter.  Nor,  in  the  absence  of  all  direct  evidence 
of  authority,  does  the  nature  of  the  employment  of  such  a  bailiff  furnish  any  ground 
for  inferring  the  existence  of  such  an  authority  upon  slight,  or  upon  any  other  than 
clear  and  distinct,  evidence  of  assent  or  acquiescence.  In  Tappan  v.  Bailey,  4  Met. 
529,  where  a  company  was  formed  for  the  purpose  of  purchasing  timber-land  in  Maine, 
and  getting  the  hnnber  therefrom  and  selling  it,  and  officers  were  appointed  to  take  tho 
genei'al  management  of  the  concerns  of  tlie  couii)any,  witli  power  to  apf)oint  agents  to 
transact  its  business ;  it  was  hikl,  that  an  agent  appointed  by  such  officers  had  au- 
thority to  give  a  negotiable  note  of  tlic  company  in  payment  for  services  of  laborers 
employed  by  him  in  getting  out  lumber.  It  seems  that  an  agent  who  is  employed  by 
the  owners  of  a  whale-ship  to  fit  her  for  sea,  and  purchase  the  necessary  supplies  for  her 
voyage,  cannot  bind  the  owners  by  making  a  net;otiable  note,  or  accepting  a  negotiable 
bill  of  exchange,  in  their  names,  as  agent,  in  payment  for  such  sup|)lies.  Taber  r.  Can- 
non, 8  Met.  456.  In  the  Bank  of  Hamburg  v.  Johnson,  3  Ricli.  42,  the  defendant 
established  a  large  store  in  a  country  town,  for  the  sale  of  groceries  and  purclia.se  and 
ealc  of  cotton,  under  the  entire  diarge  of  W.  as  liis  agent,  and  gave  public  notic(;  that 
W.  would  conrluct  the  business  and  act  as  his  agent  in  the  purchase  of  goods  and 
everything  appertaining  to  his  business  in  the  mercantile  line.  W.  sold  cotton  as  de- 
fendant's agent,  and,  in  order  to  enable  the  purchaser  to  raise  money  to  pay  for  it, 


CH.  v.]  AGENTS.  117 

has  an  attorney  at  law,  to  whom  a  note  is  sent  for  collection, 
any  authority  as  attorney  to  transfer  the  note  to  a  third  per- 
son. (<)  If  the  holder  of  a  bill  employ  an  agent  to  get  it  dis- 
counted, without  restraining  him  as  to  tiie  mode  of  doing  it, 
an  authority  will  be  implied  in  the  agent  to  indorse  the  bill 
in  the  name  of  the  principal. (m)  But  if  the  principal  expressly 
directs  the  agent  to  take  the  bill  into  the  market  and  sell  it, 
without  indorsing  it,  and  the  agent,  in  violation  of  his  orders. 


indorsed,  in  the  name  of  his  principal,  a  bill  to  be  discounted  by  the  y)urchascr  in  bank. 
The  bill  was  discounted,  and  with  the  money  thus  raised  the  purchaser  paid  for  the 
cotton.  Held,  that  W.  had  not  acted  within  the  scope  of  his  authority,  and  therefore 
that  tlie  defendant  was  not  bound  by  the  indorsement.  So  an  agent  employed  in  the 
manufacture  of  carriages  has  no  authority,  b}'  implication  from  the  nature  of  that  busi- 
ness, to  bind  his  principal  by  a  negotiable  note  given  for  labor  or  materials.  Paige  v. 
Stone,  10  Met.  160.  And  see  Scarborough  v.  Reynolds,  12  Ala  252.  In  Beach  v. 
Vandewater,  I  Sandf.  2G5,  it  was  held,  that  an  agent  of  an  association  of  canal  for- 
warders, authorized  by  the  articles  to  regulate  the  accounts  of  earnings,  and  the  distri- 
bution of  the  same  and  of  the  expenses,  to  control  the  manner  of  running  the  boats,  to 
sue  for  various  duties  undertaken  by  the  parties,  and  to  maintain  offices  for  the  trans- 
action of  the  business,  is  not  authorized  to  accept  bills  of  exchange,  so  as  to  bind  the 
associates.  See  Layet  v.  Gano,  17  Ohio,  466.  In  Webber  v.  Williams  College,  23 
Pick.  302,  wliere  an  agent  was  authorized  to  advance  a  sum  of  money  to  a  third  per- 
son, and  he,  instead  thereof,  gave  a  note  for  the  amount  in  the  principal's  name,  it  was 
hdd,  that  the  principal  was  not  liable  on  the  note.  In  Gould  v.  Norfolk  Lead  Co.,  9 
Gush.  338,  it  was  held,  that  the  payment  of  an  unaccepted  draft  upon  a  corporation,  by 
its  agent,  is  no  evidence  of  his  authority  to  accept  drafts  upon  the  corporation  ;  and 
the  fact  that  such  acceptor  acted  as  general  agent  has  little  tendency  to  show  such  au- 
thority. Shaw,  G.  J.  said  :  "  The  acceptance  of  a  draft  is  an  executory  undertaking 
to  pay  it  at  a  future  day,  and  the  authority  to  make  such  an  agreement  is  not  incident 
even  to  the  authority  of  an  agent  to  purchase  and  pay  for  goods.  The  authority  to 
accept  is  one  of  a  very  high  character,  particularly  in  the  case  of  a  trading  corporation, 
to  whom  business  credit,  and  the  use  of  that  credit,  are  constantly  necessary.  It  has 
been  argued  that  such  authority  may  be  inferred  from  the  course  of  trade,  and  the 
payment  of  unaccepted  drafts  upon  the  company,  on  other  occasions.  But  this  impli- 
cation does  not  follow  from  such  payments  ;  for,  cither  the  agent  had  funds  of  the  com 
pany  for  the  purpose  of  paying  such  drafts,  which  docs  not  imply  that  lie  had  authority 
to  pledge  their  credit,  or  he  paid  them  from  his  own  funds,  relying  on  the  credit  of  the 
company,  and  their  previous  undertaking  and  liabilitj',  to  reimburse  him  for  all  his  ad- 
vances, which  implies  no  authority  whatever  to  bind  them  to  a  future  payment  of  money 
by  an  acceptance.  I  shall  not  go  into  an  examination  of  the  cases  on  this  subject,  but 
will  refer  to  that  of  Webber  v.  Williams  College,  23  Pick  302,  where  the  question  waa 
much  considered,  and  many  cases  were  cited.  The  case  of  Emerson  v.  Providence 
Hat  Manuf  Co.,  12  Mass.  237,  goes  to  the  point  that  constituting  one  a  buying  and 
Belling  agent  of  a  trading  company  does  not  imply  authority  in  him  to  give  the  nego- 
Mable  note  of  the  company." 

(t)  Russell  V.  Drummond,  6  Ind.  216. 

(«)  Fenn  v.  Harrison,  4  T.  R.  177. 


118  NOTES   AND   BILLS.  [CH.  V. 

indorses  in  the  name  of  the  principal,  the  latter  will  not  be 
liable  on  this  indorsement,  even  in  the  hands  of  a  bona  fide 
holder,  (y) 

It  is  said  that  the  usage  of  trade  authorizes  a  merchant, 
making  a  shipment,  to  draw  on  the  consignee,  and  binds  the 
consignee  to  pay  the  bills  if  the  shipment  supplies  him  with 
funds.  But  an  agent  who  is  authorized  to  draw  on  his  prin- 
cipals for  the  sums  he  advances  on  merchandise  consigned  to 
tliem,  is  not  thereby  authorized  to  draw  on  them  on  account 
of  goods  of  his  own  which  he  consigns  to  them.  In  relation 
to  these  goods,  he  has  the  general  rights  of  a  merchant  ship- 
ping goods,  and  no  other,  (ly)  A  power  to  give  a  "  company 
note "  was  held  to  include  the  power  of  drawing  a  bill  in  the 
name  of  the  "  company."  (a;)  That  any  principal  may  limit  any 
authority  which  he  gives,  precisely  as  he  thinks  proper,  is  un- 
questionable. 

If  an  authority  be  given  in  very  general  terms,  and  the  same 
instrument  enumerates  certain  special  objects  or  acts,  this  speci- 
fication will  be  held  to  restrain  the  general  words,  and  the 
instrument  will  be  construed  as  if  limited  in  its  intention  and 
operation  to  them,  unless  there  be  some  phraseology  in  the 
instrument,  or  something  in  the  nature  of  the  case,  which  dis- 
tinctly controls  this  rule  of  construction. (y) 

If  one  enters  into  a  contract  as  agent  for  another,  he  cannot 
enforce  that  contract  in  his  own  name  and  for  his  own  benefit, 
as  if  made  by  himself  and  for  himself,  without  giving  sufficient 
previous  notice  to  the  other  party  of  his  purpose  so  to  do.  But 
with  that  notice,  it  seems  that  he  may  maintain  an  action  on 
the  contract  in  his  own  name,  if  the  facts  arc  such  in  other 
respects  as  would  authorize  hhn  in  doing  so.(c^) 


(v)  Fenu  v.  Harrison,  3  T.  11.  757. 

(w)   Scliimtnelpcniiicli  v.  Bayard,  1  IVt.  264. 

(.r)   Tripp  v.  Swanzcy  Paper  Co.,  13  Pick.  291. 

(ij)  'I'lius,  in  UoHsitcr  v  Rossitcr,  8  Wend.  494,  it  was  held,  that  a  power  of  attorney 
to  collect  debts,  to  execute  deeds  of  lands,  to  accomplish  a  complete  adjustment  of  all 
concerns  of  the  constituent  in  a  particular  ])lace,  and  to  do  all  other  acts  which  the  con- 
Htitucnt  could  do  in  person,  did  not  authorize  the  {,'ivin}i;  of  a  note  by  the  attorney  in 
the  name  of  the  principal.  The  larj^er  powers,  conferre<l  by  the  ^xi'nL-ral  words,  must 
be  ponstriKMl  with  reference  to  the  matters  specially  mentioned.  And  see  ante,  p.  vqS, 
el  HPij. 

(z)  IJi'kertun  v.  Hurrell,  5  Maulc  &  S.  383  ;  Kayucr  i-.  Grotc,  15  M.  &  W.  359. 


CH.  v.]  AGENTS.  119 

If  an  agent  exceed  his  authority  in  signing  the  name  of 
his  principal  to  a  note,  the  note  will  be  void  as  to  the  principal, 
even  in  the  hands  of  a  bona  fide  holder,  (a) 

Any  person  who  receives  bills  or  notes  for  collection,  or  for 
any  other  specific  purpose,  must  be  controlled  by  any  directions 
or  limitations  expressed  upon  them,  and  cannot  apply  the  pro- 
ceeds to  his  own  benefit,  in  any  way  inconsistent  with  those 
directions  or  limitations  ;  nor  can  he  by  assignment  or  indorse- 
ment convey  the  property  in  the  paper  to  any  one  who  has 
notice  or  knowledge  that  he  therein  transcends  his  authority. (/^) 
So  an  agent  or  broker,  who  has  notes  or  bills  of  another  to  get 
them  discounted,  cannot  pledge  them  for  money  previously  due 
from  him  ;  nor,  as  it  would  seem,  could  he  be  justified  by  any 
usage  in  doing  so.(6')  On  general  principles  it  might  be  said 
that  he  could  not  pledge  them  for  money  paid  him,  if  the  lend- 
er knew,  or  had  sufficient  reason  to  know,  both  that  the  notes 
belonged  to  another,  and  that  the  broker,  against  the  pur- 
poses of  the  owner,  was  borrowing  money  on  them  for  himself. 
Nor  can  he,  without  specific  authority,  pledge  the  bills  of  dif- 
ferent customers  in  one  mass,  for  this  subjects  each  note  to 
a  lien  for  money  advanced  on  the  rest.  But  to  this  point 
it  has  been  said  that  usage  might  enlarge  the  broker's  author- 
ity.(./) 

It  lias  been  said,  on  high  autliority,  that  any  person  taking 
an  acceptance  which  purports  to  be  by  procuration,  takes  it 
on  the  credit  of  the  party  who  assumes  to  have  authority  to 
accept,  and  should,  therefore,  in  the  exercise  of  due  caution 
and   reasonable   prudence,  require   the   production   of  the  au- 


(a)  Fearn  v.  Filica,  7  Man.  &  G.  513  ;  Andover  v.  Grafton,  7  N.  H.  298,  303.  In 
Mechanii's'  Bank  v.  New  York  &  New  Haven  R.  R.  Co.,  3  Kern.  631,  Comstock,3. 
says  :  "  It  is  obvious,  upon  a  moment's  reflection,  that  negotiability  can  impart  no 
vitality  to  an  instrument  executed  undfer  a  power,  where  the  agent  has  exceeded  his 
actual  or  presumptive  autliority.  Whoever  proposes  to  deal  with  a  security  of  any 
kind  apjiearing  on  its  face  to  be  given  by  one  man  for  another,  is  bound  to  inquire 
whether  it  has  been  given  by  due  authority,  and  if  he  omits  that  inquiry  he  deals  at  his 
peril." 

(h)  Ancher  v.  Bank  of  England,  2  Doug.  6.38;  Sigourney  v.  Lloyd,  8  B.  &  C  622, 
5  Bing.  525. 

(c)  ILaynes  v.  Foster,  2  Cromp.  &  M.  237  ;  Foster  v.  Pearson,  1  Cromp.  M.  &  II. 
849. 

{d)  Ilaynes  i;.  Foster,  supra  ;  Foster  j;.  Pearson,  supra. 


120  NOTES   AND    BILLS.  [CIL  V. 

thority.(e)  But  it  may  be  doubted  whether  the  not  requiring 
the  production  of  this  authority  would,  of  itself  and  of  neces- 
sity, be  such  an  act  of  negligence  as  to  affect  his  rights  ;  al- 
tliough  such  seems  to  be  the  view  held  in  some  cases. 

The  unauthorized  delivery  of  bills  or  notes  payable  to  bearer 
gives  a  bona  fide  holder  the  property  in  them,  and  a  right  to 
call  on  all  prior  parties.  (/)  And  the  same  rule  applies  to 
negotiable  notes  or  bills  which  are  indorsed  in  blank  ;  for  these 
are  equally  transferable  by  delivery  alone. 

One  having  a  general  authority  as  agent,  or  a  special  au- 
thority unlimited  as  to  time,  may  be  presumed  to  possess  that 
authority  until  there  be  notice  of  revocation. (^'■)  This  notice 
may  be  express,  and  proved  by  direct  evidence ;  or  it  may  be 
inferred  from  any  circumstances,  such  as  change  of  residence, 
or  of  business,  or  lapse  of  time,  or  of  any  other  kind,  always 
provided  they  are  such  as  would  suggest  this  revocation  or 
cessation  of  authority  to  a  man  of  ordinary  intelligence  and 
prudence. (/i)  So  the  notice  may  be  direct  to  the  party  deal- 
ing with  the  agent,  or  general,  by  advertisement  in  a  public 
paper,  and  then  the  knowledge  of  it  must  be  brought  home  to 


(e)  Attwood  V.  Munnings,  7  B.  &  C.  278.  Baijley,  J. :  "  Tliis  was  an  action  upon 
an  acceptance  importing  to  be  by  procuration,  and,  therefore,  any  person  taking  the 
bill  would  know  that  lie  had  not  the  security  of  the  acceptor's  signature,  but  of  the 
party  professing  to  act  in  pursuance  of  an  authority  from  him.  A  ]>erson  taking  such 
a  bill  ought  to  exercise  due  caution,  for  he  must  take  it  upon  the  credit  of  the  party 
wlio  assumes  the  authority  to  accept,  and  it  would  be  only  reasonable  prudence  to  re- 
quire the  production  of  that  authority."  Ilohoijd,  J. :  "  The  word  '  procuration  '  gave 
due  notice  to  the  ])laintiffs,  and  tiiey  were  bound  to  ascertain,  l)efore  they  took  the  bill, 
that  tlie  acceptance  was  agreeable  to  the  authority  given."  Lilllcdali',  J.  :  "  It  is  said 
that  third  persons  are  not  bound  to  inquire  into  the  making  of  a  bill ;  but  tliat  is  not 
so  where  the  acceptance  a])pears  to  be  by  procuration."  See  Withington  v.  Herring, 
.5  Bing.  442.  In  Alexfinder  v.  Mackenzie,  6  C.  B.  766,  it  was  hild,  that  the  acceptance 
or  indorsement  of  a  bill  of  exchange  exjjressed  to  be  "  per  procuration''  is  a  notice  to 
the  indorsee  that  the  party  so  accepting  or  indorsing  professes  to  act  under  an  authority 
from  some  ])rincipal,  and  imposes  upon  the  indorsee  the  duty  of  ase(>rtaiiiing  that  the 
party  so  accepting  or  indorsing  is  acting  within  the  terms  of  such  authority. 

(/)   Miller  v.  Race,  1  Burr.  452. 

(//)   In  )'.  Harrison,   12  Mod.  .340,  a  servant   had   power   to  draw  bills  of  c.x- 

cliangp  in  his  master's  name,  and  nfterwards  was  turned  out  of  the  scrvu-c.  Holt,  C. 
J.:  "  If  he  draw  a  hill  in  so  little  time  after  that  the  world  cannot  take  notice  of  Iiis 
being  out  of  service,  or  if  he  were  a  long  time  out  of  his  service,  but  that  kept  so 
Hecret  that  the  world  cannot  take  notice  of  it,  the  bill,  in  those  ca.sea,  shall  bind  the 
macter." 

{It]   Sec  1  Parsons  on  Cont.  .^8,  e/  nfi/j. 


CH.  v.]  AGENTS.  121 

liim  by  such  reasonable  evidence,  as  that  he  takes  the  paper, 
or  reads  it  regularly,  or  was  known  to  liave  examined  tliat  very 
paper,  (/t) 

DeaUi  operates  as  a  revocation  of  every  agency  or  authority 
which  is  not  coupled  with  an  interest,  and  in  that  way  vested 
in  the  agent.  Even  in  that  case,  the  death  of  the  principal 
revokes  the  authority  so  far  tliat  the  agejit  can  no  longer  use 
the  name  of  the  principal,  and  must  require  the  representatives 
of  the  deceased  to  act  for  him.  But  if  the  authority  be  one 
which  the  agent  can  execute  in  his  own  name,  and  be  also 
coupled  with  an  interest,  it  is  unaffected  by  the  death  of  the 
party.  Whatever  be  the  nature,  ground,  or  extent  of  the  au- 
thorit;y  to  act  for  another  in  his  name,  we  should  say,  on  gen- 
eral principles,  that  his  name,  put  to  any  negotiable  paper, 
or  indeed  to  any  instrument,  after  his  death,  although  in  ig- 
norance and  good  faith,  was  a  nullity.(7;) 

One  who  i)urports  to  act  as  an  agent,  but  who  transcends 
his  authority,  or  has  no  authority,  is,  as  we  have  seen,  per- 
sonally liable ;  but  not  as  a  party  to  the  note  or  bill  which 
he  so  signs,  indorses,  or  accepts,  if  he  signed  expressly  as  agent ; 
as.  for  example,  "  A,  by  B,  his  attorney."  If  B  is  not  A's  at- 
torney, there  is,  strictly  speaking,  no  signature  to  the  note  ;  and 
B  is  oidy  liable  for  pretending  to  make  a  note  when  he  did 
not.  But  there  are  authorities  which  hold  that  here  is  a  note, 
and  some  one  must  be  held  upon  it,  and,  as  A  cannot  be,  B 
must  be.(i) 

(k)  See  1  Parsons  on  Cont.  58,  el  seq. 

(i)  Tlic  authorities  upon  this  point  cannot  be  reconciled.  In  Polhill  v.  Walter,  3  B. 
&  Ad.  114,  it  was  held,  that  the  defendant,  who  had  accepted  a  bill  for  one  Ilancornc 
without  authority,  was  liable  in  a  special  action  on  the  case,  but  not  as  acceptor.  This 
was  upon  the  ground  that  no  one  can  be  liable  as  acceptor  but  the  person  to  whom  the 
bill  is  addressed.  In  Wilson  v.  Barthrop,  2  M.  &  W.  8G3,  the  defendant,  who  was  tlio 
agent  and  clerk  of  a  firm,  drew  a  bill  of  exchange,  and  signed  thereto  the  name  of 
the  firm.  Hdd,  that  the  defendant  was  not  liable  as  the  drawer  in  an  action  on  the  bill, 
his  name  not  being  affixed  to  it,  without  some  proof  that  he  had  no  authority  to  draw 
bills  in  the  name  of  the  firm,  or  that  he  had  not  acted  bona  fide.  And  rjiiiere,  whether, 
if  it  had  been  proved  that  he  had  no  such  authority,  he  would  have  been  liable  in  an 
action  upon  the  bill.  In  Long  v.  Colburn,  11  Mass.  97,  a  promissory  note  was  sub- 
scribed thus  :  "  Pro  William  Gill.  J.  S.  Colburn."  Ili-ld,  that  this  was  the  promise 
of  Gill,  if  Colburn  had  the  authority  to  make  it ;  and  if  not,  that  he  would  be  liable  to 
the  promisee  in  a  special  action  on  the  case  In  Ballou  v.  Tall)ot,  16  ]Mass.  461,  the 
defendant  made  a  promissory  note,  subscribed  with  his  own  name,  but  added  to  his 
signature  the  words,  "  agent  for  David  Perry."    Held,  that  the  defendant  was  not  liable 

vov.    I  11 


122  NOTES  AND   BILLS  [CH   V. 

As  a  general  rule,  one  who  acts  professedly  as  a  public  agent, 
and  had  authority  so  to  act,  is  not  liable,  although  the  public  fail 
to  perform  the  contract,  unless  circumstances  indicate  that  it 
was  understood  between  him  and  the  party  dealing  with  him  that 
the  contract  was  made  on  his  personal  credit.  As,  for  example, 
that  an  officer  charged  with  the  erection  of  some  public  building 
induced  laborers  to  engage  in  it  by  his  promise  that  their  wages 
should  be  paid  at  all  events,  and  whether  funds  were  provided  or 
not.     So  if  he  drew  bills  or  gave  notes  for  the  public,  but  with 


on  the  note.  If  he  acted  without  authority  from  Perry,  he  was  liable  in  a  special  action 
on  the  case.     In  Jefts  v.  York,  4  Cush.  371,  the  defendant  made  a  promissory  note 

beginning,  "For  value  received,  the  pastor  and  deacons  of Church,  in  behalf  of 

said  church,  promise,"  &c.     (Signed,)  "  S.  D.  York,  agent  for Church."     Iltld, 

that  the  defendant  was  not  personally  liable  on  the  note,  though  he  gave  it  without 
authority.  Bigeloiu,  J.  said :  "  It  is  impossible,  upon  any  legal  ground,  to  construe 
the  instrument  as  the  individual  note  of  the  defendant.  Had  it  bocn  a  note  of  this 
tenor,  '  I  promise  to  pay  A.  B.  one  hundred  dollars.  S.  D.  York,  agent  for  the  Free- 
will Baptist  Society,'  it  might  be  plausibly  contended,  that,  if  the  agency  was  unauthor- 
ized, all  the  description  of  agent,  &c.  might  be  rejected,  and  the  note  be  treated  as  the 
individual  note  of  York.  But  the  note  is  in  no  sense,  and  in  no  manner  of  reading  it, 
a  promissory  note  of  York.  In  this  instance,  the  body  of  the  note  contains  tlic  name 
of  the  promisor,  who  alone  is  the  stipulated  party  to  the  promise  contained  in  the  note." 
See  same  case,  10  Cush.  392.  In  Grafton  Bank  v.  Flanders,  4  N.  H.  239,  wlierc  A  put 
die  name  of  B  to  a  promissory  note  without  any  authority  from  B,  and  the  note  was 
delivered  to  the  payee  for  a  valuable  consideration,  it  was  held,  that  under  these  circum- 
stances tlic  law  would  presume  that  A  intended  to  bind  himself ;  that  he  might  so  bind 
himself;  and  that  he  was  liable  in  an  action  against  him  in  his  true  name  on  the  note, 
upon  a  count  alleging  that  he  made  the  note  by  the  name  of  B.  Sed  quitre.  Ii\  Sav- 
age V.  Kix,  9  N.  II.  263,  in  an  action  on  a  promissory  note,  it  was  held,  that  if  an  agent, 
in  making  a  contract,  fail  to  execute  it  in  such  a  manner  as  to  bind  his  principal,  but 
use  apt  words  by  which  to  make  a  contract  for  liimself,  whatever  there  may  be  which 
indicates  that  he  might  be  an  agent  must  be  regarded  as  description,  and  he  will  bo 
liable  as  on  his  own  personal  contract.  In  Duscnbury  v.  Ellis,  3  Johns.  Cas.  70,  iho 
defendant,  having  no  authority  for  the  purpose,  made  a  promissory  note,  beginning,  "  I 
promi.sc,"  &c.  (Signed,)  "For  Peter  Sharpc,  Gabriel  Duscnlmry,  attorney."  lldd, 
that  the  defendant  was  personally  liable  on  the  note.  The  court  said  :  "  If  a  person, 
under  pretence  of  authority  from  another,  executes  a  note  in  his  name,  ho  is  bound  ; 
and  the  name  of  the  person  for  wiiom  he  assumed  to  act  will  be  rejected  as  surplusage." 
In  Palmer  (;.  Stephens,  1  Dcnio,  471,  the  defendant,  without  authority,  made  a  promis- 
sory note,  and  signed  thereto  the  name  of  Gideon  Stepliens,  writing  his  own  initials 
under  the  signature.  Ilvid,  that  tlio  defendant  was  personally  liable  on  the  note.  In 
Ormsby  v.  Kendall,  2  Ark.  338,  the  defendant  gave  a  note,  beginning,  "Steamer 
Tecuin.seh  an<l  owners  promise,"  &c.  (Signed,)  "  F.  C.  Kendall."  Held,  that  the 
defendant  was  personally  liable  on  tlic  note,  unless  lie  showed  that  he  had  authority 
to  contract  for  the  steamer  and  owners.  Sec  further,  Hobcrts  v.  Button,  I4  Vt.  19.5; 
Bank  of  Hamburg  v.  Wray,  4  Strobh.  87  ;  Johnson  v.  Smith,  21  Conn.  627  And  se« 
1  Parsons  on  (^ont.  57,  note  _/! 


CH.  v.]  PARTNERS.  123 

the  same  personal  assurance,  or  guaranty ;  or  if  such  assurance 
could  be  implied  from  the  nature  of  the  casG.{j) 


SECTION    Y. 

OF  PARTNERS. 

The  relation  of  partnership,  and  the  law  which  grows  out  of, 
and  which  regulates,  that  relation,  arc  very  peculiar.  Partly,  it 
is  the  law  of  agency,  because  each  partner  is  the  agent  of  the 
whole  Ilrm,  with  full  power  to  represent  all  the  members,  in  all 
transactions  whicli  relate  to  the  business  of  the  copartnership. 
Partly,  it  is  the  law  of  property,  because  the  several  partners 
own  jointly  all  the  copartnership  property.  It  is,  in  fact,  a  sys- 
tem of  law  excellently  adapted  to  its  precise  scope  and  purpose, 
and  peculiar  thereto. 

A  partnership  exists  when  two  or  more  persons  combine  their 
property,  labor,  and  skill,  or  one  or  more  of  these,  in  the  trans- 
action of  business,  for  their  common  profit. 

The  law  clothes  each  partner  with  authority  to  bind  all  the 
partners  in  all  business  transactions  which  actually  concern  the 
firm ;  or  which  are  so  far  within  the  scope  of  the  actual  or  pre- 
tended business  of  the  firm  as  to  justify  third  parties  in  believing 
them  to  belong  to  the  business  of  the  firm.  And  this  applies  to 
signing,  indorsing,  accepting,  presenting,  demanding  and  receiv- 
ing payment  of,  and  discharging  negotiable  paper.  And  a  part- 
ner who  accepts,  in  his  owu  name,  a  bill  drawu  ou  a  firm,  binds 
the  firm.  (A;)     Nor  is  it  any  objection  to  a  note  given  in  good  faith 

( j)  See  1  Parsons  on  Cont.  104,  et  seq. 

[k)  Mason  v.  Rumsey,  I  Camp.  384.  In  this  case  the  bill  was  drawn  upon  "  Messrs. 
Rumsey  &  Co.,"  and  acceijted  by  T.  Ramsey,  Sen.  It  was  contended  for  tlie  defend- 
ant, that,  "  if  a  bill  was  drawn  upon  a  firm,  it  must  be  accepted  in  the  name  of  the 
firm,  or  by  one  partner  for  himself  and  his  copartners ;  otherwise  the  holder  might 
protest  the  bill,  as  the  mere  signature  of  a  single  partner  was  binding  only  upon 
himself."  But  Lord  Ellenhorongh  said :  "  There  is  no  foundation  for  the  doctrine 
contended  for.  This  acceptance  does  not  prove  the  partnership ;  but  if  the  defend- 
ants were  partners,  they  are  both  bound  by  it.  For  this  purpose  it  would  have  been 
enough  if  the  word  'accepted'  had  been  written  on  the  bill,  and  the  effect  cannot 
^Q  altered  by  adding  '  T.  Rumsey,  Sen.'  If  a  bill  of  exchange  is  drawn  upon  a 
firm,  and  accepted  by  one  of  the  partners,  he  must  be  understood  to  exercise  his 
power  to  bind  his  copartners,  and  to  accept  the  bill  according  to  the  terms  in  which 


124  NOTES   AND   BILLS.  [CH.  V. 

for  a  partnersliip  debt,  that  it  was  given  without  the  knowledge 
of  the  other  partners. (/)  And  the  signature  of  a  partner,  in  the 
name  of  the  firm,  to  negotiable  paper,  for  a  transaction  not  in 
their  business,  or  their  line  of  business,  would  bind  the  firm,  if 
the  proceeds  thereof  were  received  and  held  by  the  firm,  because 
this  would  be  a  ratification. (wi)  But  if  the  other  partners  did 
not  know  of  the  transaction  at  the  time,  and,  as  soon  as  they  did, 
gave  up  the  proceeds  and  repudiated  the  contract,  this  would  dis- 
charge them.  A  considerable  delay  in  giving  notice  of  their  dis- 
sent, after  they  are  informed  of  the  transaction,  would  be  equiv- 
alent to  their  assent,  and  would  bind  them  accorclinglj.(;/) 


it  is  drawn  "  In  Jenkins  v.  Morris,  16  M.  &  W.  877,  a  hill  was  drawn  on  "  E.  M.  and 
others.  Trustees  of  Clarence  Temperance  Hall,  Liverpool,"  and  acceined  thus:  "Ac- 
cepted, E.  M."  The  defendants,  with  E.  M.  and  another,  were  the  trustees  of  a  body 
of  persons  associated  tof^ether  for  the  purpose  of  buildiiij^  the  Teni])crance  Hall.  E. 
M.  had  authority  from  all  the  trustees  to  accept  the  bill  ou  tlieir  behalf.  Held,  that  the 
defendants  were  i)ound  by  the  accejjtance,  though  it  did  not  show  on  the  face  of  it  that 
E.  M.  intended  to  accept,  not  individually,  but  for  himself  and  four  others.  Pollock, 
C.  B.  said  :  "  Mundy  accepted  the  bill,  and  the  jury  found  that  he  had  authority  from 
all  the  trustees  to  do  so.  Then  his  acceptance  did  not  import  that  he  acce])ted  merely 
as  an  individual,  but  that  he  was  the  party  whose  hand  performed  that  duty  by  direc- 
tion of  the  rest ;  and  the  mere  fact  that  he  needlessly  added  his  name  to  the  acceptance 
made  no  difference."  In  Dougal  v.  Cowles,  5  Day,  511,  it  was  held,  that  the  act  of 
drawing  a  bill  of  exchange,  by  one  partner  in  his  own  name,  upon  the  firm  of  which 
he  Is  a  member,  for  the  use  of  tlie  partnership  concern,  is,  in  contemplation  of  law,  an 
acceptance  of  the  bill,  by  the  drawer,  in  behalf  of  the  firm  ;  and  the  holder  of  the  bill 
may  sustain  an  action  thereon  against  the  firm,  as  for  a  bill  accepted.  And  sec  Beach 
r.  State  Bank,  2  Ind.  -188 

(/)  Smith  V.  Lusher,  5  Cowen,  688. 

(m)  In  Hicliardson  v.  French,  4  Met.  577,  where  an  administrator,  who  was  a  mem- 
ber of  a  partnership,  applied  to  the  concerns  of  the  partnership  money  which  belonged 
to  the  estate  of  his  intestate,  and  afterwards  gave  the  note  of  the  firm  to  the  creditor  of 
the  intestate,  to  whom  such  money  was  due,  in  discharge  of  such  creditor's  claim  upon 
the  estate  of  the  intestate ;  it  was  held,  that  the  firm  was  liable  on  the  note,  although 
the  money  was  not  in  the  hands  of  the  firm  when  the  note  was  given.  And  see  Jaqucs 
V.  Marquand,  6  Cowen,  497  ;  Whitaker  v.  Brown,  11  Wend,  lo,  16  Wend.  505  ;  Clay 
17.  Cottrell,  18  Penn.  State,  408. 

(n)  Thus,  in  Foster  v.  Andrews,  2  Penn.  160,  it  was  held,  that  if  a  note  he  given  b, 
one  partner  in  the  name  of  tlic  firm,  for  his  own  private  debt,  and  the  other  partner, 
upon  being  informed  of  the  transaction,  docs  not  dissent  or  give  notice  to  the  ])ayce 
tluU  he  will  not  be  liai)lc,  he  shall  be  bound.  But  in  Elliott  v.  Dudley,  19  15arb.  3'26, 
it  was  hild,  that  to  render  the  firm  liable  under  such  circumstaiu'cs,  where  ihcre  lias 
been  no  previous  usage  to  justify  such  a  use  of  the  partnershi])  name,  their  snl).sequent 
assent  must  be  proved  ;  that  proof  of  knowledge  of  the  transaction  on  their  part,  after 
it  hu.s  taken  place,  and  nothing  more,  is  no  proof  of  assent  ;  that  they  are  not  bound 
to  deny  their  liability  \mtil  they  are  prosecuted.  In  Cansevoort  v.  Williams,  14  Wend. 
133,  it  was  held,  tiiat  where  one  member  of  a  mercantile  firm  gives  a  note  ii'  vlie  name 


CH.  v.]  PARTNERS.  125 

If  a  partner  by  his  signature  defrauds  tlie  firm,  this  does  not 
discharge  them  from  their  liability  to  an  innocent  third  party, 
because  their  entering  into  partnership  with  the  wrong-doing 
partner  enabled  him  to  commit  the  fraud. (o)  Not  so  where  the 
third  party  is  not  innocent,  but  is  party  or  privy  to  the  fraud ; 
for  then  the  firm  is  discharged.  Tiuis,  if  one  partner  signs  or 
indorses  a  note  with  the  partnership  name,  but  in  payment  or 
security  of  his  private  debt,  and  the  taker  knows  it  to  be  so,  the 
other  partners  are  not  bound  without  their  assent,  or  some  act 
which  justified  the  taker  in  supposing  their  assent  ;(/>)  and  the 


of  the  firm  for  his  individual  debt,  the  assent  of  the  firm  may  be  implied  from  facts 
and  circumstances;  an  express  assent  need  not  be  shown.  In  Mercein  v.  Andrus,  10 
Wend.  461,  it  was  held,  that  a  partner  is  not  liable  to  the  payment  of  a  note  indorsed  by 
his  copartner  in  the  name  of  the  firm,  out  of  the  course  of  the  partnership  concerns, 
although  he  be  present  and  hear  the  arrangement  respecting  the  indorsement ;  his  assent 
must  be  proved,  and  will  not  be  presumed.     And  see  Sweetscr  v.  French,  2  Cush.  309, 

(o)  Catskill  Bank  v.  Stall,  t.5  Wend.  364;  Whitaker  v.  Brown,  16  Wend.  505; 
Hawes  r.  Dunton,  1  Bailey,  146;  Bascom  v.  Young,  7  Misso.  1  ;  Cotton  ?;.  Evans,  1 
Dev.  &  B.  Eq.  284  ;  Winship  v.  Bank  of  United  States,  5  Pet.  529 ;  Flemming  v.  Pres- 
cott,  3  Rich.  307  ;  Miller  v.  Manice,  6  Hill,  115  ;  Duncan  v.  Clark,  2  Rich.  587  ;  Em- 
erson V.  Harmon,  14  Maine,  271  ;  Waldo  Bank  v.  Lumbert,  16  Maine,  416 ;  Parker  v. 
Burgess,  5  R.  I.  277  ;  Hopkins  v.  Boyd,  11  Md.  107.  In  Arden  v.  Sharpe,  2  Esp.  524, 
Lord  Kemjon  said  :  "  One  partner  certainly  may  indorse  a  bill  in  the  partnership  name  ; 
and  if  it  goes  into  the  world,  and  gets  into  the  hands  of  a  bona  jftde  holder,  who  takes 
it  on  the  credit  of  the  partnership  name,  and  is  ignorant  of  the  circumstances,  though 
in  fiict  the  bill  was  first  discounted  for  that  one  partner's  own  use,  in  such  case  the 
partnership  is  liable."     And  see  next  note. 

{p)  The  principle  is  clearly  stated  by  Lord  Kemjon  in  Wells  v.  Masterman,  2  Esp. 
731 :  "  When  a  man  enters  into  a  partnership,  he  certainly  commits  his  dearest  rights  to 
the  discretion  of  every  one  who  forms  a  part  of  that  partnership  in  which  he  engages  ; 
and  if  a  bill  is  drawn  upon  the  partnership  in  their  usual  style  and  firm,  and  it  is 
accepted  by  one  of  the  partners,  it  certainly  binds  tiie  partnership  to  the  payment  of  it; 
but  if  a  man  has  dealings  with  one  partner  only,  and  he  draws  a  bill  on  the  partnership 
on  account  of  those  dealings,  he  is  guilty  of  a  fraud,  and  in  his  hands  the  acceptance 
made  by  that  partner  would  be  void  ;  but  it  would  be  otherwise  in  the  case  of  a  bona 
fide  indorsee.  In  his  hands,  the  acceptance  of  one  of  the  partners  binds  the  partner- 
ship, as  he  is  ignorant  of  the  circumstances  under  which  it  was  created,  and  takes  it  on 
the  credit  of  the  partnership  name."  To  the  same  effect  is  Shirreff  v.  AVilks,  1  East, 
48.  It  was  there  held,  that  two  (of  three)  partners,  who  had  contracted  a  debt  prior  to 
the  admission  of  the  third  partner  into  the  firm,  could  not  bind  him  without  his  assent 
by  accepting  a  bill  drawn  by  the  creditor  upon  the  firm  in  their  joint  names  ;  but  such 
security  is  fraudulent  and  void  as  against  the  third  partner.  And  see  Ex  parte  Gould- 
ing,  2  Glyn  &  J.  118  ;  Ex  parte  Bonbonus,  8  Ves.  540;  Green  v.  Deakin,  2  Stark. 
347.  The  same  rule  is  settled  in  this  country  by  a  great  number  of  cases.  See  Liv- 
ingston r.  Hastie,  2  Caines,  246  ;  Lansing  v.  Gaine,  2  Johns.  300  ;  Livingston  v.  Roose- 
velt, 4  Johns.  251;  Dob  v.  Halscy,  16  Johns.  34;  Foot  v.  Sabin,  19  Johns.  154 
Laverty  v.  Burr,  1  Wend.  529;  Williams  v.  Walbridge,  3  Wend  415;  Bank  of 
11* 


126  KOTES   AXD   BILLS.  [CH.  V. 

admissions  of  the  partner  signing  are  no  evidence  to  prove  the 
assent  of  the  others. (</)  In  this  conntry  it  is  clearly  settled  that 
the  taker  must  prove  the  assent  of  the  other  partners,  for  prima 
facie  such  a  transaction  is  a  fraud  hoth  on  the  part  of  the  debtor 


Eochester  i-.  Bowen,  7  Wend.  158  ;  Gansevoort  v-  Williams,  14  Wend.  133  ;  Joyce  v. 
Williams,  U  Wend.  141;  Wilson  r.  Williams,  14  Wend.  146;  Whitaker  v.  Brown, 
16  Wend.  505  ;  Huntington  v.  Lyman,  1  D.  Chip.  438  ;  Chazourncs  v.  Edwards,  3 
Pick.  5  ;  Munroe  v.  Cooper,  5  Pick.  412  ;  Baird  v.  Cochran,  4  S.  &.  R.  397  ;  Cotton  v. 
Evans,  1  Dev.  &  B ,  Eq.  284;  Weed  v.  Richardson,  2  Dev.  &  B.  535;  Mauldin  r. 
Branch  Bank,  2  Ala.  502  ;  Smyth  v.  Strader,  4  How.  404 ;  Long  v.  Carter,  3  Ired.  238  ; 
N.  Y.  F.  las.  Co.  v.  Bennett,  5  Conn.  574  ;  Andrews  r.  Planters'  Bank,  7  Snicdcs  &  M. 
192  ;  Rogers  i'.  Batchelor,  12  Pet.  221  ;  Clay  v.  Cottrell,  18  Penn.  State,  408  ;  Lanier  r. 
McCabe,  2  Fla.  32.  In  Livingston  v.  Roosevelt,  4  Johns.  251,  it  appeared  that  in  1803 
A  and  B  entered  into  j)artnership  as  sugar-refiners,  and  published  in  two  of  the  Gazettes 
printed  in  the  city  of  New  York  (and  which  were  taken  by  C),  that  they  had  entered 
into  partnership  in  the  sugar-refining  business,  under  the  firm  of  A  &  Co.  In  April, 
1805,  B,  without  the  knowledge  or  consent  of  A,  purchased  a  quantity  of  brandy  of  C, 
for  which  he  gave  his  individual  note  payable  to  the  firm,  and  indorsed  by  him  with  tho 
name  of  the  firm.  The  bill  of  parcels,  by  the  direction  of  B,  was  made  out  in  his  name 
only,  and  the  brandies  were  shipped  to  the  West  Indies  in  a  vessel  belonging  to  B, 
and  on  his  own  account ;  and  C,  in  order  to  obtain  the  drawback,  made  oath  at  the 
custom-house  that  the  brandy  was  sold  to  B.  A  and  B  had  entered  the  name  of  the 
firm  at  two  of  the  banks  in  the  city  of  New  York,  and  B  drew  checks  and  made  and 
indorsed  notes  in  the  name  of  the  firm,  which  were  regularly  paid,  and  the  banks  had 
considered  A  and  B  as  general  partners.  C,  when  he  sold  the  brandy,  required  the 
partnership  security,  and  it  did  not  appear  that  he  knew  of  the  limitation,  until  after  its 
dissolution  in  June,  1805,  notice  of  wiiich  was  also  published  in  two  of  the  newspapers. 
Held,  that  the  partnership  was  not  liable  on  the  note.  In  Davenport  v.  Runlett,  3 
N.  H.  386,  R.  and  T.  were  partners  in  trade,  and  while  they  were  tiius  partners,  T. 
boarded  with  D.  and  gave  to  the  latter  a  note,  in  the  name  of  the  firm,  for  the  price  of 
the  board,  without  the  knowledge  of  R.  Ueld,  that  the  personal  expenses  of  j)artncrs 
could  not  be  presumed  to  be  a  partnership  concern,  and  that  R.  could  not  be  held  upon 
the  note,  until  the  plaintiflf  should  show  affirmatively  tiiat  T.  had  authority  thus  to  bind 
the  firm.  In  Gansevoort  v.  Williams,  14  Wend.  133,  where,  upon  the  renewal  of  an 
accommodation  note,  the  borrower  presented  to  his  accommodation  indorser  for  signa- 
ture a  note  to  which  he  had  affixed  the  name  of  a  firm  of  which  he  had  recently  become 
a  member,  as  makers  ;  it  was  held,  that  the  indorser  was  chargeable  with  notice  that  the 
note  was  given  for  the  individual  debt  of  the  borrower,  and  could  not,  ui)on  the  dis- 
honor of  the  note,  recover  against  the  firm.  In  Tanner  in  Hall,  1  Penn.  State,  417, 
where  a  partner  made  a  note  in  his  own  name  in  favor  of  a  third  person,  who  indorsed 
it  for  his  accommodation,  and  the  partner  then  added  the  indorsement  of  his  firm,  and 
had  the  note  discounted  at  a  bank  and  the  proceeds  carried  to  his  separate  account;  it 
was  hi'ld,  that  tiie  bank  was  chargeable  with  notice  tiiat  the  transaction  was  not  within 
tiic  course  of  the  [lartnersliij)  business.  And  sec  Manning  v.  Hays,  6  Md.  5.  In  Coop- 
er V.  McClurkan,  22  Penn.  State,  80,  where  a  partner  drew  a  bill  of  exchange  in  the 
name  of  the  firm  on  himself,  i)ayable  to  the  order  of  the  firm,  accejttcd  it  in  iiis  own 
name,  indorsed  it  in  the  name  of  the  firm,  and  placed  it  in  the  hands  of  a  bill-broker, 

(7)  Hickman  v.  Reineking,  6  Blackf.  387. 


I 


CH.  v.]  PARTNERS.  127 

and  the  creditor. (/•)  In  England,  it  seems,  perhaps,  that  this 
authority  is  presumed  until  they  prove  the  contrary. (s)  "We 
have  some  doubt,  however,  whether  the  authorities  which  indi- 
cate this  can  be  sustained  upon  any  well-established  principle ; 
and  we  regard  them  as  departing  from  the  rule  aj)plicd  by  Lord 
Kenijon  and  Lord  Eldon.[t) 

who  negotiated  it ;  it  was  held,  that  the  form  of  the  bill  was  sufficient  to  put  the  holder 
upon  inquiry,  and  that  the  firm  miglit  defend  by  showing  that  it  was  tujt  a  partnership 
transaction,  but  that  the  bill  was  drawn  and  negotiated  by  tlie  paitncr  for  his  individual 
use.  But  in  Ihmsen  v.  Ncgley,  25  Peiin.  State,  297,  where  an  individual,  who  was  a 
member  of  two  firms,  made  a  note  in  the  name  of  one  firm,  payable  to  himself,  and 
indorsed  it  with  tlie  name  of  the  otlier  firm  ;  it  was  held,  that  this  was  not  sucli  a  case 
as  to  require  the  plaintiff,  a  holder  for  value  before  maturity,  to  prove  the  assent  of  the 
partners  to  such  indorsement,  or  that  the  proceeds  were  ajiplied  to  the  benefit  of  the 
firm.     See  Murphy  v.  Camden,  18  Misso.  122.     And  see  ante,  p.  108,  note  iv. 

(/•)  Dob  V.  Halsey,  IG  Johns.  34  ;  Foot  v.  Sabin,  19  Johns.  154  ;  Sweetser  v.  French, 
2  Cush.  309;  Kemeys  v.  Richards,  11  Barb.  312;  Noble  v.  M'Clintock,  2  Watts  &  S. 
152  ;  Mecutchen  v.  Kennad_v,  3  Dutch.  230.     And  see  cases,  supra. 

(s)  We  state  this  upon  the  authority  of  Swan  v.  Steele,  7  East,  210,  and  Ridley  v. 
Taylor,  13  East,  175. 

(t)  In  Swan  v.  Steele,  A,  B,  and  C  traded  under  the  firm  of  A  &  B  in  the  cotton 
business,  C  not  being  known  to  the  world  as  a  partner ;  and  A  &  B  traded  as  part- 
ners alone  under  the  same  firm  in  the  business  of  grocers,  in  which  latter  business  they 
became  indebted  to  D,  and  gave  him  their  acceptance,  which,  not  being  able  to  take 
up  when  due,  they,  in  order  to  provide  for  it,  indorsed  in  the  common  firm  of  A  &  B 
a  bill  of  exchange  to  D,  which  they  had  received  in  the  cotton  business,  in  which  C 
was  interested ;  but  such  indorsement  was  unknown  to  C,  of  whom  D,  the  indorsee, 
had  no  knowledge  at  the  time.  Held,  that  such  indorsement  in  the  firm  common  to 
both  partnerships  of  a  bill  i-eceived  by  A  &  B  in  the  cotton  business  bound  C,  their 
secret  partner  in  that  business,  and  that  consequently  C  was  liable  to  be  sued  by  D 
on  such  indorsement,  the  latter  not  knowing  of  the  misapplication  of  the  partnership 
fund  at  the  time.  In  Ridley  v.  Taylor,  it  was  held,  that  if  one  partner  draw  or  indorse 
a  bill  in  the  partnership  name,  it  will  prima  facie  bind  the  firm,  although  passed  by  the 
one  partner  to  a  separate  creditor  in  discharge  of  his  own  debt ;  unless  there  be  evi- 
dence of  covin  between  such  separate  debtor  and  creditor,  or  at  least  of  the  want  of 
authority,  either  express  or  to  be  implied,  in  the  debtor  partner  to  give  the  joint  secu- 
rity of  the  firm  for  his  separate  debt.  Lord  Ellenhoroiujh  placed  considerable  reliance 
upon  the  special  circumstances  of  the  case.  He  said :  "  This  bill  had  an  existence, 
according  to  its  apparent  date,  eighteen  days  before  the  time  of  its  delivery  to  the 
plaintiff's ;  it  was  drawn  for  a  sum  considerably  exceeding  the  debt,  and  was  not  only 
drawn  and  indorsed,  but  accepted  also,  before  it  was  produced  to  them  ;  and  although 
it  is  stated  in  the  case,  that  in  fact  the  bill  was  drawn  and  indorsed  by  Ewbank  in  the 
partnership  firm,  it  does  not  appear  that  the  plaintiffs  knew  that  it  was  drawn  and 
indorsed  by  him.  Under  these  circumstances  it  might  reasonably  be  supposed,  by  the 
party  to  whom  it  was  given,  to  be  a  partnership  security,  of  which  Ewbank,  the  i)artner 
in  possession  of  it,  had  for  some  valuable  consideration,  or  in  virtue  of  some  arrange- 
ment with  Ord,  the  other  partner,  become  the  proprietor,  so  as  to  be  authorized  to  deal 
with  it  as  his  own.  At  any  rate,  the  contrary  does  not  either  actually  or  presump- 
tively appear."     See  Green  v.  Deakin,  2  Stark.  347. 


128  NOTES   AND    BILLS.  [CH.  V 

One  wlio  indorses  such  a  note  as  surety,  in  the  belief  that  it  is 
good  against  the  partnersliip,  will  not  be  liable  to  a  holder  who 
knew  that  it  was  made  for  the  private  debt  of  one  partner,  with- 
out the  authority  or  assent  of  the  rest.(w)  If  the  surety,  when 
ne  indor;>ed  tlie  note,  knew  the  circumstances  under  which  it  was 
made,  he  will  be  liable ;  but  the  burden  of  proof  is  on  the  holder 
CO  show  that  tlie  surety  had  this  knowledge. (v) 

A  bill  or  note  made  by  one  partner  in  the  name  of  the  firm, 
will  be  presumed  to  have  been  made  in  the  course  of  partnership 
dealings  ;  and  if  the  other  partners  seek  to  avoid  its  payment,  the 
burden  of  proof  lies  upon  them  to  show  that  it  was  given  in  a 
matter  not  relating  to  the  partnership  business,  and  that  with  the 
knowledge  of  the  payee. (?i?)  And  it  is  immaterial  as  to  this, 
whether  the  partnership  be  a  limited  or  a  general  one.(.r) 

If  the  action  be  brought  by  a  subsequent  indorsee  against 
the  partnership,  and  the  defendants  show  that  the  note  was 
executed  in  fraud  of  the  firm,  as  between  the  partner  executing 
it  and  the  payee,  it  has  been  held,  in  this  country,  that  this 
will  throw  the  burden  of  proof  upon  the  plaintiff  to  show  tiiat 
he  came  by  the  note  fairly,  and  without  knowledge  of  the 
fraud. (y)     But  it  has  been  held  otherwise  in  England. (c) 


(u)  Livingston  i;.  Hastie,  2  Caines,  246  ;  Chazournes  v.  Edwards,  3  Pick.  5  ;  Williams 
V.  Walbridjre,  3  Wend.  41.5.     See  Bowcn  v.  Mead,  1  Mich.  432. 

(i")  Chazournes  v.  Edwards,  3  Pick.  5. 

(w)  Doty  V  Bates,  II  Johns.  .544  ;  Whitaker  v.  Brown,  16  Wend.  505  ;  Foster  i;. 
Andrews,  2  Penn.  160;  Ensminger  v.  Marvin,  5  Blackf.  210;  Knapp  v.  McBride,  7 
Ala.  19;  Tlmrston  v.  Lloyd,  4  Md.  283;  Manning  v.  Hays,  6  Md.  5;  Hamilton  v. 
Summers,  12  B.  Mon.  11. 

(r)   Barrett  v.  Swann,  17  Maine,  180  ;  Holmes  v.  Porter,  39  Maine,  157. 

ill)  Munroe  v.  Cooper,  5  Pick.  412  ;  Bank  of  St.  Albans  v.  Gilliland,  23  Wend.  31 1 ; 
Bank  of  Vcrgennes  v.  Cameron,  7  Barb.  143.     And  sec  post,  chajiter  on  Holder. 

(;)  Musgrave  v.  Drake,  5  Q.  B.  185.  In  this  case  it  was  proved  that  all  the  defend- 
ants were  partners,  and  that  one  of  them,  who  had  suffered  judgment  by  <li'fault,  had 
accepted  the  bill  in  the  name  of  the  firm,  in  fraud  of  the  partnership,  and  not  for  part- 
nersiiip  purposes.  Held,  that  such  proof,  without  evidence  of  knowledge  on  the  part 
of  the  j)lainiitr,  diil  not  oblige  him  to  prove  the  circumstances  under  which  the  bill  was 
indorsed  to  him.  The  question  arose,  under  the  new  rules  of  pleading,  ui)on  an  issue 
joined  upon  a  plea  of  non  acr.qni.  Lord  Deiinian  said  :  "  We  have  taken  pains  to  ascer- 
tain what,  as  understood  in  the  other  com'ts,  would  be  the  course  at  Nisi  Prius  on  tho 
trial  of  such  an  issue  as  this.  We  find  that  the  other  courts  agree  in  our  view,  which 
is  this:  Where  issue  is  joined  on  a  plea  of  non  acccpil,  and  the  ])roof  offered  of  tho 
acceptance  is  the  signature  of  one  partner  competent  to  bind  the  firm,  then,  though  the 
defendants  show  that  this  signature  was  a  fraudulent  act  on  the  |)art  of  such  partner, 
yet  if  the  proof  docs  not  affect  the  plaintiff  with  knowledge  of  tho  fraud,  that  docs  not 


on.  v.]  PARTNERS.  129 

The  authority  of  one  partner  to  l/uid  another,  hy  .signing 
lulls  and  not(!.s  in  their  joint  names,  is  only  an  implied  au- 
thority, and  may  be  rebutted  by  express  previous  notice  to  the 
party  taking  such  security  from  one  of  them,  that  tiie  other 
would  not  be  liable  for  it.  And  this,  though  it  were  repre- 
sented to  the  holder  by  the  party  signing  such  security,  that 
the  money  advanced  on  it  was  raised  for  the  j)urpose  of  being 
applied  to  the  payment  of  partnership  debts  ;  and  tiiough  the 
greater  part  of  it  were  in  fact  so  api)lied.(a) 

It  has  been  lield,  that  if  a  bill  was  accepted  in  a  partnership 
uame,  and  the  proceeds  were  intended  and  applied  for  the  ex- 
clusive benefit  of  the  partner  signing  it,  with  the  knowledge 
of  tiie  holder  as  to  a  part  of  the  proceeds,  he  can  recover  of 
the  partnership  the  remainder  of  the  bill,  in  relation  to  which 
he  did  not  know  that  it  was  applied  to  the  private  benefit  of 
one  partner  alone,  on  the  ground  that  the  objection  of  fraud 
does  not  apply  to  this  part. (6)  But  we  think  this  decision  open 
to  question. 

It  has  also  been  held,  that  a  note  in  the  words,  "  I  promise 
to  pay,"  (fee,  signed  by  one  member  of  a  firm  for  the  rest,  as 


put  the  plaintiff  to  an  answer,  nor  make  it  necessary  for  him  to  give  any  explanation 
or  account  of  the  transaction."  But  see  Grant  v.  Hawkes,  Chitty  on  Bills,  9th  ed., 
42,  note  c. 

(a)  Gallway  v.  Matiicw,  10  East,  264,  1  Camp.  40.3.  Lord  Ellenhoronrjh  said:  "  Tho 
general  authority  of  one  partner  to  draw  bills  or  promissory  notes  to  charge  another  is 
only  an  implied  authority ;  and  that  implication  was  rebutted  in  this  instance  by  the 
notice  given  by  Smithson,  who  is  now  sought  to  be  charged,  which  reached  the  plain- 
tiff, warning  him  that  Mathew  had  no  such  authority.  It  is  not  essential  to  a  part- 
nership that  one  partner  should  have  power  to  draw  bills  and  notes  in  the  partnership 
firm  to  charge  the  others ;  they  may  stipulate  between  themselves  that  it  shall  not  be 
done,  and  if  a  third  person,  having  notice  of  this,  will  take  such  a  security  from  one 
of  the  partners,  he  shall  not  sue  the  others  upon  it  in  breach  of  such  stipulation,  nor  in 
defiance  of  a  notice  previously  given  to  him  by  one  of  them,  that  he  will  not  be  liable 
for  any  bill  or  note  signed  by  the  others."  See  further.  King  v.  Faber,  22  Penn.  State, 
21 ;  per  Colden,  Senator,  in  Smith  v.  Lusher,  5  Cowen,  688 ;  1  Parsons  on  Cont.,  pp. 
157,  158. 

[b]  Wintle  i-.  Crowther,  1  Cromp.  &  J.  316.  See  Wilson  v.  Lewis,  2  Man.  &  G.  197. 
In  Gamble  v.  Grimes,  2  Ind.  392,  a  bill  of  exchange  was  drawn  on  a  firm,  and  was 
accepted  by  one  of  the  partners  in  the  name  of  the  firm.  The  bill  included  an  indi- 
\idual  debt  due  by  the  partner  accepting,  and  also  a  debt  due  by  the  firm.  Held,  that 
the  drawers  of  the  bill  could  recover  on  the  bill  the  amount  of  the  firm  debt  included 
in  it.  In  King  v.  Faber,  22  Penn.  State,  21,  it  was  held,  that  a  partner  cannot  render  a 
firm  liable  for  a  note  for  his  individual  debt,  by  including  within  it  a  debt  of  the  firm 
forming  a  small  portion  of  it. 

Vol.  I.— I 


130  NOTES   AXD   BILLS.  [CH.  V 

"A.  B.,  for  C.  D.,  E.  F.,"  <tc.,  will  bind  the  whole  firm.(c)  So 
if  the  note  begin,  "  I  promise  to  pay,"  &c.,  and  be  signed  with 
the  partnership  name,  as  "  A.  B.  &  Co.,"  it  will  bind  the  firm.(^^) 
A  partner  drawing  bills  or  notes  for  the  firm  in  a  fictitious 
name,  and  indorsing  them  with  the  partnership  name,  the  pro- 
ceeds being  applied  to  partnership  purposes,  binds  all  the  part- 
ners by  the  indorsement. (e)  And  so  he  does,  it  seems,  although 
the  money  be  not  so  applied,  if  the  bills  or  notes  were  indorsed 
to  a  bona  fide  holder,  in  the  line  of  the  firm's  business.  But  if 
a  bill  is  drawn  by  one  partner  in  his  own  name,  and  the  name 
or  style  of  the  copartnership  is  not  on  the  paper,  the  members 
of  the  firm  will  not  be  liable  as  drawers,  even  if  the  purpose  of 
the  bill  was  to  raise  money  for  the  firm,  and  the  money  was  so 
applied.  (/) 


(c)  Gallway  v.  Mathew,  10  East,  264,  1  Camp.  403  ;  Staats  v.  Howlett,  4  Denio,  559. 
In  Hall  V.  Smith,  I  B.  &  C.  407,  where  a  promissory  note  beginning,  "  I  promise  to 
pay,"  was  signed  by  one  member  of  a  firm  for  himself  and  his  copartners  ;  it  was  held, 
that  the  holder  might  charge  either  the  signing  partner  or  the  firm,  at  his  election. 
But  this  case  was  overruled  in  Ex  parte  Buckley,  in  re  Clarke,  14  M.  &  W.  469, 
where  it  was  held,  that  the  holder  of  such  a  note  had  not  a  separate  right  of  action 
against  the  partner  so  signing,  but  that  the  firm  alone  were  liable.  Parke,  B.  said  : 
"  This  is  prima  facie  a  promise  by  one  partner,  for  himself  and  the  other  three  partners, 
and  it  amounts  to  one  promise  of  the  four  persons  constituting  the  firm ;  and  if  Mitch- 
ell had  autliority,  the  firm  is  bound.  I  really  must  say  that  1  think  Hall  v.  Smith  can- 
not be  supported.  The  partner,  in  making  the  promise,  is  only  an  agent  for  the  firm. 
Then  does  it  bind  him  personally,  or  does  it  bind  the  firm  ?  No  doubt  the  instrument 
was  intended  to  bind  the  fii'm ;  and  as  he  had  authority  as  a  partner  to  do  it,  it  had 
that  effect."  See  Maclac  v.  Sutherland,  3  Ellis  &  B.  31  ;  Ex  parte  Christie,  3  Mont. 
D.  &  De  G.  736. 

(c/)  Doty  V.  Bates,  11  Johns.  544. 

(c)  Thicknesse  v.  Bromilow,  2  Cromp.  &  J.  425. 

(/)  Siff'kin  V.  Walker,  2  Camp.  308.  In  this  case  it  was  held,  that  if  a  promissory 
note  appears  on  the  face  of  it  to  be  the  separate  note  of  A  only,  it  cannot  be  declared 
on  as  tlie  joint  note  of  A  and  B,  though  given  to  secure  a  debt  for  which  A  and  B 
were  jointly  liable.  Lord  Ellenhorour/h  said  :  "How  can  I  say  that  a  note  made  and 
signed  by  one  in  his  own  name  is  the  note  of  him  and  another  person  neither  mentioned 
nor  referred  to  1 "  In  Emly  t;.  Lye,  15  East,  7,  where  one  of  two  partners  drew  bills 
of  exchange  in  his  own  name,  wliich  he  ])rocured  to  be  discounted  with  a  banker 
through  the  medium  of  the  s-ame  agent  wlio  procured  the  discount  of  other  bills  drawn 
in  tiie  partnership  firm  with  the  same  banker,  and  the  proceeds  were  carried  to  tlio 
partnersiiip  account;  it  was  held,  that  the  banker  liad  no  remedy  against  the  ])artner- 
ship,  either  upon  the  bills  so  drawn  by  the  single  partner,  or  for  money  had  and  re- 
ceived througii  the  medium  of  such  bills  ;  the  money  having  been  advanced  solely  on 
the  security  of  the  parties  whose  names  were  on  the  bills  by  way  of  discount,  and  not 
by  way  of  loan  to  the  partnership  ;  though  the  banker  conceived  at  the  time  that  all 
the  bills  were  drawn  on  tlie  partnership  account.     And  sec  Ex  parte  Emly,  1  Rose, 


en.  v.]  PARTNERS.  131 

It  sometimes  happens  that  the  business  of  the  copartnership 
is  conducted  under  the  name  of  one  of  the  partners,  the  firm 
having  no  other  name  or  style  ;  and  then  it  may  be  difficult 
to  discriminate  between  notes  made  or  indorsed  by  him  as 
an  individual,  and  those  intended  to  bind  the  copartnership. 
From  the  reason  of  the  case  and  the  authorities,  the  following 
rules  may  be  applicable  to  questions  of  this  kind. 

In  the  first  place,  if  the  partner  signs  the  paper  in  the  business 
of  the  firm,  and  intending  to  sign  as  a  partner,  this  is  the 
firm's  paper,  (o")  And  if  the  paper  be  signed  in  fact  in  the 
business  and  for  the  benefit  of  the  firm,  the  other  partners 
cannot  deny  their  obligation,  merely  because  the  signer  intend- 
ed the  paper  should  be  taken  as  his  own,  unless  it  was  in  fact 
taken  on  his  private  account,  knowingly  and  intentionally  on 
the  part  of  the  holders.  But  in  this  country  the  burden  of 
proof  is  upon  the  plaintiff  to  show  that  the  paper  was  given 
in  the  business  and  for  the  use  of  the  firm  ;  for  it  will  be  in- 
tended, prima  facie,  to  have  been  given  in  the  separate  business 
of  the  partner  signing  it,  and  to  be  binding  upon  him  alone ; 

61 ;  Bawden  v.  Howell,  3  Man.  &  G.  638  ;  Holmes  v.  Burton,  9  Vt.  252  ;  GiaefF  v. 
Hitcliman,  5  Watts,  454  ;  Logan  v.  Bond,  13  Ga.  192  ;  Hammond  v.  Aiken,  3  Rich. 
Eq.  119.  In  Haldeman  v.  Bank  of  Middletown,  28  Penn.  State,  440,  a  draft  was 
drawn  in  the  firm  name  by  one  of  the  partners,  payable  to  his  own  order,  and  by  him 
indorsed  in  his  own  name  to  one  who  supposed  it  was  for  the  purposes  of  the  firm. 
The  partner  applied  the  money  to  his  private  use.     Held,  that  the  firm  was  liable. 

[g]  South  Carolina  Bank  v.  Case,  8  B.  &  C-  427.  In  this  case  A,  B,  and  C  carried 
on  business  in  copartnership  as  factors  and  commission-merchants  in  England  and 
America  ;  in  England,  under  the  firm  of  A,  C,  &  Co.  ;  in  America,  in  the  name  of  C 
alone.  When  C  went  to  America  he  had  written  instructions  from  his  partners,  one  of 
which  was :  "  It  is  understood  that  our  names  are  not  to  appear  on  either  bills  or  notes 
for  the  accommodation  of  others,  and  that  they  should  appear  as  little  as  possible  on 
paper  at  all,  and  then  only  as  regards  direct  transactions  with  the  house  here."  A,  B, 
and  C,  in  order  to  obtain  consignments  from  America,  made  advances  or  granted 
drafts  or  bills  of  exchange,  or  indorsements  of  them,  to  their  principals,  on  the  security 
of  the  goods  consigned.  In  order  to  obtain  a  consignment  from  W.,  C  in  his  own  name 
indorsed  bills  for  him,  which  were  to  be  provided  for  by  others  drawn  by  W.  on  A,  C, 
&  Co.  in  England,  which  were  to  be  provided  for  by  the  proceeds  of  the  consignment. 
Before  the  latter  bills  were  presented  for  acceptance,  A  and  B  had  become  bankrupts. 
Held,  that  the  indorsement  of  the  bills  by  C  must  be  considered  as  an  indorsement  by 
the  firm,  and  that  thej^  were  liable  upon  those  bills.  —  But  where  A  and  B  were  part- 
ners in  a  trade  carried  on  in  the  name  of  A  only,  and  A  drew  bills  in  his  own  name 
payable  vo  his  order,  which  he  indorsed,  and  afterwards  B  also  indorsed  and  procured 
them  to  be  discounted,  it  was  held,  that  A  and  B  were  not  liable  upon  the  bills  jointly, 
Viless  it  appeared  that  A  drew  and  indorsed  the  bills  in  the  character  of,  and  as  repre- 
senting, A  and  B.     Ex  parte  Bolitho,  Buck,  100. 


132  NOTES   AND   BILLS.  [CH.  V. 

at  least  if  he  is  also  engaged  in  business  on  his  own  separate 
account. (A) 

If  the  note  be  signed  actually  for  his  private  account,  and  the 
money  be  so  applied,  the  partners  are  not  liable,  unless  the 
holder  can  prove  that  he  took  the  signature  to  be  that  of  the 
partnership,  and  was  justified  in  so  regarding  it  by  the  acts  or 
words  of  the  partner  making  it,  or  by  the  other  partners,  or  by 
the  course  of  their  business.(i)  If  a  third  person,  believing  such 
a  note  to  be  binding  on  the  partners  when  it  is  not,  sign  or  in- 
dorse it  as  surety,  he  will  not  be  liable  thereon  to  one  who  knew 
that  it  was  valid  only  against  one  partner. (y) 

If  the  partner  obtained  the  money  by  representing  the  signa- 
ture to  be  that  of  the  firm,  but  misapplied  the  money,  this  may 

{h)  Thus,  in  Manufacturers',  &c.  Bank  r.  Winship,  .5  Pick.  11,  it  was /jeW,  that, 
where  a  partnership  was  carried  on  in  the  name  of  an  individual,  a  note  in  common 
tbrm,  signed  by  such  individual,  did  not  prima  facie  bind  his  copartners  ;  and  that  upon 
the  question  whether  it  was  given  for  the  use  of  the  copartnership,  the  burden  of  proof 
was  on  the  holder.  So  in  Mercantile  Bank  v.  Cox,  38  Maine,  500,  it  was  held,  that  if 
A  and  B  are  doing  business  as  partners  under  the  name  of  A  alone,  and  a  bill  of  ex- 
change is  drawn  upon  A  and  accepted  by  him,  it  is  prima  facie  binding  upon  A,  and 
not  upon  the  firm.  So  in  Boyle  v.  Skinner,  19  Misso.  82,  where  a  note  was  made  pay- 
able to  J.  A.  H.,  and  there  was  a  finn  composed  of  J.  A.  H.  and  others,  doing  business 
under  the  style  of  J.  A.  H.,  but  no  evidence  was  offered  to  show  to  whom  or  on  what 
account  the  note  was  given  ;  it  was  /ifW,  that  it  should  be  presumed  to  have  been  given 
to  J.  A.  H.  individually.  And  see,  to  the  same  elfect,  U.  S.  Bank  v.  Binney,  5  Mason, 
176  ;  Biickner  v.  Lee,  8  Ga.  28.5;  Bank  of  Rochester  v.  Monteath,  1  Denio,  402.  lu 
Furze  v.  Sharwood,  2  Q.  B.  388,  which  was  an  action  against  several  defendants  as  in- 
dorsers  of  bills  of  exchange.  Lord  Denman  said  :  "  The  defendants  appear  to  have  been 
trustees  under  a  deed,  by  the  provisions  of  which  they  were  to  carry  on  a  business  in 
the  name  of  Samuel  Maine.  They  did  so,  and  employed  Samuel  Maine  himself  to  con- 
duct the  business.  Their  firm,  therefore,  so  to  speak,  was  Samuel  Maine.  The  in- 
dorsement of  bills  was  necessary  and  incidental  to  the  carrying  on  such  business. 
Prima  facie,  therefore,  the  signature  '  Samuel  Maine '  was  their  signature,  and  they 
would  be  Ijound  by  it.  But  it  is  said  that  Maine  carried  on  a  scjiarate  business  of  his 
own,  and  that  the  plaintiff  was  bound  to  show  that  the  indorsements  in  question  were 
on  account  of  the  business  of  the  trustees,  and  not  in  his  separate  business.  Now  it 
appears  that  the  bills  were  discounted  with  persons  who  were  in  the  habit  of  discount- 
ing for  the  former  firm,  wlio  assigned  their  effects  to  the  defendants  as  trustees  ;  and, 
moreover,  that  the  bills  in  question  were  not  discounted  till  after  Maine  liad  ceased 
to  carry  on  his  separate  business.  Under  these  circumstances  we  think  tin\t  the  onus  of 
sliowing  that  the  indorsements  were  made  on  account  of  tiie  separate  business,  and  not 
on  that  of  the  trustees,  which  was  the  general  and  ostensible  business,  lay  on  the 
defendants." 

(t)  U.  S.  Bank  v.  Binney,  5  Mason,  176  ;  Buckncr  v.  Lcc,  8  Ga.  28.'> ;  Woodward 
V.  Winship,  12  Pick.  430. 

(j)  Livingston  v.  Ilastie,  2  Gaines,  246;  Chazournes  v.  Edwards,  3  Pick.  5;  Wil 
liams  V.  Walbridgc,  3  Wend.  415. 


CH.  v.]  PARTNERS.  133 

be  a  fraud  on  the  partners,  but  it  will  be  a  fraud  wImcIi  the  part- 
nership enabled  him  to  commit,  and  the  other  partners  will  be 
liable,  unless  the  holder  had  notice  or  knowledge,  or  sufficient 
means  of  knowledge,  of  the  intended  fraud. (A;)  If  the  other 
members  knew  that  the  transaction  was  done  in  the  name  of  the 
firm,  and  do  not  dissent  or  object  when  they  may,  they  will  be 
liable  on  the  note,  although  they  did  not  know  that  the  purchase 
was  made  on  credit,  and  even  if  the  purchase  were  not  properly 
within  the  authority  of  the  party  making  [t.{l) 

Partners,  as  between  themselves,  may  enter  into  any  lawful 
stipulations  they  like,  and  these  are  binding  upon  them  ;  l)ut  the 
law  interferes  in  respect  to  them,  when  the  question  is  between 
the  partners  and  a  third  party.  The  rule  is  this :  If  a  partner, 
by  agreement  with  his  copartners,  has  no  authority  to  sign  for 
them  at  all,  or  none  to  sign  for  them  in  a  particular  case,  and 
nevertheless  does  sign  for  them,  this  binds  the  partners  as  to  all 
third  parties  who  did  not  know  of  the  agreement  or  want  of  au- 
thority, (m)  But  it  is  fraud  on  the  part  of  that  partner  against 
the  other  partners ;  and  one  who  takes  papers  so  signed,  with  a 
knowledge  of  the  agreement,  has  a  knowledge  of  the  fraud  also, 
(for  a  mistake  as  to  the  law  or  the  legal  rights  of  the  parties 
cannot  help  him,)  and  he  is,  therefore,  a  party  or  privy  to  the 
fraud,  and  cannot  hold  the  other  partners. 

In  general,  as  we  have  seen,  however  a  partner  may  transcend 
his  authority  or  violate  his  stipulations  with  his  partners,  this  is 
no  defence  for  them  against  an  innocent  party ;  and  even  securi- 
ties which  are  void  as  against  the  firm  in  the  hands  of  those  who 
knew  the  fraud  in  which  they  originated,  may  be  good  in  the 
hands  of  innocent  holders  for  value.  But,  on  the  other  hand,  if 
a  firm  sues  on  a  note  or  bill,  a  good  defence  against  any  one  part 
ner  is  a  good  defence  against  all ;  and  this  even  iT  it  rest  on  his 
fraud,  of  which  they  were  not  cognizant  or  participant.  Thus, 
if  one  partner  relieves  an  acceptor  of  his  responsibility,  this  dis- 
charges him  as  to  all,  although  it  was  a  fraudulent  act  of  the 
partner,  (m)     And  this  rule  has  been  applied  where  A  indorsed  to 

{k)  U.  S.  Bank  v.  Binney,  5  Mason,  176  ;  Buckner  v.  Lee,  8  Ga.  285. 
(I)  Woodward  v.  Winship,  12  Pick.  430. 

(m)  Kimbro  v.  Bullitt,  22  How.  2.56 ;  Winship  v.  Bank  of  United  States,  5  Pet.  529; 
Miller  v.  Hughes,  1  A.  K.  Marsh.  181  ;  Gall  way  v.  Mathew,  10  East,  264. 

(n)  Thus,  in  Kichraond  v.  Heapy,  1  Stark.  202,  one  of  three  partners  undertook  to 
VOL.   I.  12 


134  NOTES   AND   BILLS.  [CH.  V. 

a  firm  of  A,  B,  &  C,  a  bill  drawn  in  his  own  name  on  D,  and  ac- 
cepted. A  had  given  D  his  promise  in  writing  to  provide  for  the 
bill,  and  it  was  held,  in  a  suit  by  the  firm  against  the  drawee, 
that  A's  promise  bound  the  other  partners. (o)  Perhaps,  how- 
ever, the  other  partners  might  have  some  relief  in  equitj,(p) 

provide  for  two  bills  of  exchange,  drawn  by  the  three  partners,  and  accepted  by  a 
fourth  person  when  they  should  become  due.  Held,  that  such  acceptancps  would  not 
support  a  commission  of  bankruptcy,  on  the  petition  of  the  three  partners  against  the 
acceptor ;  although  the  conduct  of  the  partner  might,  as  against  his  copcrtners,  have 
been  fraudulent.  Lord  EUenborough  said  :  "  Suppose  that  an  action  had  been  brought 
by  the  three  partners  on  these  bills,  would  it  not  have  been  an  answer  that  one  of  the 
plaintiff's  had  promised  to  provide  for  the  bills  1  Are  they  not  bound  by  his  acts 
when  they  are  to  recover  by  his  strength  1 "  The  principle  was  carried  very  far  in 
Jacaud  v.  French,  12  East,  317.  Jacaud  being  partner  with  Blair  in  one  mercantile 
house,  and  with  Gordon  in  another,  the  house  of  Blair  &  Jacaud  indorsed  a  bill  of 
exchange  to  the  house  of  Jacaud  &  Gordon  ;  after  which  Blair,  acting  for  the  house  of 
Blair  &  Jacaud,  received  securities  to  a  large  amount  from  the  drawer  of  the  bill,  upon 
an  agreement  bj'  Blair  that  the  bill  should  be  taken  up  and  liquidated  by  his  house, 
and,  if  not  paid  by  the  acceptors  when  due,  should  be  returned  to  the  drawer.  Held, 
that,  the  securities  being  paid  and  the  money  received  by  Blair  in  satisfoction  of  the  bill, 
Jacaud  was  bound  by  this  act  of  his  partner  Blau-,  whether  in  fiict  known  to  him  or  not 
at  the  time,  not  only  in  respect  of  his  partnership  interest  in  the  house  of  Jacaud  & 
Blair,  but  also  individually  in  other  respects ,  and  therefore  that  he  together  with 
Gordon,  his  partner  in  the  other  house,  could  not  maintain  an  action  as  imlorsees  and 
holders  of  the  bill  against  the  acceptors,  after  such  satisfaction  received  thiough  the 
medium  of,  and  by  agreement  with,  Blair  in  discharge  of  the  same.  Lord  EUenliorough 
said :  "  Jacaud,  being  a  partner  with  Blair,  must  be  considered  as  having,  together  with 
Blair,  received  money  from  the  drawers  to  take  up  this  very  bill.  How  tlicn  cnn  he, 
because  he  is  also  a  partner  with  Gordon  in  another  house,  be  permitted  to  contravene 
his  own  act,  and  sue  upon  this  bill,  which  has  been  already  satisfied  as  to  liini  ?  If  A 
and  B,  partners,  receive  money  to  apply  to  a  particular  purpose,  A  and  0,  in  another 
partnership,  could  never  be  permitted  to  contravene  tlie  receipt  of  it  for  that  purpose, 
and  apply  it  to  another."  Bivjlei/,  J.  said  :  "  Jacaud  is  not  to  be  considered  as  a  boua 
Jide  holder  of  this  bill,  because  he  has  in  effect,  by  the  act  of  his  partner  Blair,  received 
money  for  the  purpose  of  taking  it  up,  which  ought  to  have  been  so  applied." 

(o)  Sparrow  v.  Chisman,  9  B.  &  C.  241. 

{p)  In  Jones  v.  Yates,  9  B.  &  C.  532,  which  was  an  action  of  trover  by  the  assignees 
of  Sykes  &  Bury,  to  recover  for  tliree  bills  of  exchange  wliich  Inid  belonged  to  Sykcs  & 
Bury,  and  had  been  indorsed  by  Sykes,  in  fraud  of  the  firm,  for  the  payment  of  his 
private  debt,  Lord  Tenlerden  said  :  "  Wo  are  not  aware  of  any  instance  in  wliich  a 
person  has  been  allowed,  as  plaintiff  in  a  court  of  law,  to  rescind  his  own  act,  on  the 
ground  that  such  net  was  a  fraud  on  some  other  person  ;  wliethcr  the  party  seeking  to 
do  tills  lias  sued  in  his  own  name  only,  or  jointly  with  such  other  jierson.  It  was  well 
observed  on  behalf  of  the  defendants,  that  where  one  of  two  persons,  who  have  a  joint 
right  of  action,  dies,  the  right  then  vests  in  the  survivor,  so  that  in  this  case  (if  it  bo 
held  that  Sykcs  &  Bury  may  sue),  if  Hury  had  died  before  Sykes,  Sykcs  might  have 
sued  alone,  and  thus  for  his  own  benefit  liave  avoided  his  own  act  by  alleging  his  own 
misconduct.  Tlie  defrauded  partner  may,  perhaps,  have  a  n'lnedy  in  ciiiilty,  by  a  suit 
in  his  own  name,  against  his  partner  and  tlie  person  witli  whom  the  fraud  was  com- 
mitted.    Sucli  u  suit  i.s  free  from  the  inconsistency  of  a  party  suing  on  tiic  ground  of 


CII.  V.J  PARTNERS.  135 

In  general,  or  at  least  frc<incntly,  a  holder  who  takes  security 
from  one  or  more  partners  liable  on  negotiable  paper  discharges 
the  rest.  But  it  would  seem  that  a  holder  who,  in  good  faith, 
and  by  an  express  bargain,  retains  the  original  paper,  and  re- 
serves his  rights  against  all  the  partners,  may  revert  to  them  if 
the  security  prove  ineffectual. (^) 

If  a  partner,  intending  to  use  the  name  of  the  firm,  make  a 
slight  and  unimportant  variation  in  it,  the  firm  is  still  bound ; 
but  not  if  the  variation  be  material. (r)  If  a  bill,  however,  be 
drawn  upon  a  partnership,  and  accepted  by  one  partner  for  part- 
nership pur{)0ses,  but  in  his  own  name,  the  acceptance  binds  the 
firm;  (i)  and  even  a  bill  drawn  by  one  partner  on  his  own  firm,  for 
a  partnership  debt,  will  be  valid,  and  held  as  an  accepted  bill.(^) 

his  own  misconduct.  There  is  a  great  difference  between  this  case  and  that  of  an 
action  brought  against  two  or  more  partners  on  a  bill  of  exchange  fraudulently  made 
or  accepted  by  one  partner  in  the  name  of  the  others,  and  delivered  by  such  ])artner  to 
a  phuniiff  in  discharge  of  his  own  private  debt.  In  the  latter  case,  the  defence  is  not 
the  defence  of  the  fraudulent  party,  but  of  the  defrauded  and  injured  party.  The 
latter  may,  without  any  inconsistency,  be  permitted  to  say  in  a  court  of  law,  that 
although  the  partner  may  for  many  purposes  bind  him,  yet  that  he  has  no  authority  to 
do  so  by  accepting  a  bill  in  the  name  of  the  firm  for  his  own  private  debt.  The  party 
to  a  fraud,  he  who  profits  by  it,  shall  not  be  allowed  to  create  an  obligation  in  another 
by  his  own  misconduct,  and  make  that  misconduct  the  foundation  of  an  action  at  law." 

(q)  Ev;xns  V.  Drummond,  4  Esp.  89;  Bedford  v.  Deakin,  2  Stark.  178,  2  B.  &  Aid. 
210  ;  Thompson  v.  Percival,  .5  B.  &  Ad.  925  ;  Estate  of  Davis  &  Desauque,  5  AVhart. 
5.30  ;  Yaniell  v.  Anderson,  U  Misso.  619  ;  Vernon  v.  Manhattan  Co.,  22  Wend.  183  ; 
Parker  v.  Cousins,  2  Grat.  372.     But  see  contra,  Isler  v.  Baker,  6  Humph.  85. 

(r)  Williamson  v.  Johnson,  1  B.  &  C.  146.  In  Faith  v.  Richmond,  11  A.  &  E.  339, 
it  was  liehl,  that  where  a  partner,  accustomed  to  issue  notes  on  behalf  of  the  firm, 
indorses  a  particular  note  in  a  name  differing  from  that  of  the  partnership,  and  not  pre- 
viously used  by  them,  which  note  is  objected  to  on  that  account  in  an  action  brought 
upon  it  by  the  indorsee ;  the  proper  question  for  the  jury  is,  whether  the  name  used, 
though  inaccurate,  substantially  describes  the  firm,  or  whether  it  so  far  varies  that  the 
indorser  must  be  taken  to  have  issued  the  note  on  his  own  account,  and  not  in  the  ex- 
ercise of  his  general  authority  as  partner.  In  that  case  a  partner  in  "  The  Newcastle 
and  Sunderland  Wall's  End  Coal  Company  "  drew  a  note  in  the  name  of  "  Tiie  New- 
castle Coal  Company,"  and  made  it  payable  at  a  bank  where  the  first-mentioned  com- 
pany had  no  account.  A  verdict  for  the  defendants  was  not  disturbed.  In  Kirk  v. 
Blurton,  9  M.  &  W.  2S4,  it  was  held,  that  a  partner  has  no  implied  authority  by  law 
to  bind  his  copartners  by  his  acceptance  of  a  bill  of  exchange,  except  by  an  acceptance 
in  the  true  style  of  the  partnership.  Therefore,  where  a  firm  consisted  of  J.  B.  and 
C.  II.,  the  partnership  name  being  "J.  B."  only,  and  C  H.  accepted  a  bill  in  the 
name  of  "  J.  B.  &  Co.,"  it  was  held,  that  J.  B.  was  not  bound  thereby.  See  Maclae  v. 
Sutherland,  3  Ellis  &  B.  31. 

Is)  Mason  v.  Kumsey,  1  Camp.  384  ;  Jenkins  v.  Morris,  16  M.  &  W.  877.  See  supra, 
p   123,  note  k. 

(t)  Dougal  V.  Cowles,  5  Day,  511. 


186  NOTES   AND   BILLS.  [CH.  V. 

One  partner  cannot  bind  his  copartners  by  making,  in  their 
name,  a  joint  and  several  note,  without  express  authority. (m) 
But  it  has  been  held  that  such  a  note  will  be  void  only  as  a  sev- 
eral note,  and  good  as  a  joint  note.(y)  If  he  uses  the  actual 
names  of  all  his  partners  on  paper  in  partuersliip  business,  it 
would  seem  that  this  might  hold  them.(iy)  If  A,  B,  and  C  are 
in  partnership,  and  a  note  given  by  one  of  tlieni  is  signed  '•  A  & 
Co.,"  this  will  be  presumed,  in  the  absence  of  evidence  to  the 
contrary,  to  be  the  partnership  name.(.'?;) 

If  a  man  is  a  partner  in  two  firms,  it  is  obvious  that  the  one 
firm  cannot  sue  the  other,  either  on  negotiaV)le  paper  or  on  any 
contract,  although  his  name  appear  but  in  one  or  in  neither  of  the 

(u)  Pening  v.  Hone,  4  Bing.  28,  2  C.  &  P.  401.  In  Ex  parte  Wilson,  3  Mont.  D. 
&  De  G.  57,  A  and  B,  who  were  partners,  and  C,  as  their  surety,  gave  a  joint  and 
several  promissory  note  to  D,  by  which  tliey  "jointly  and  severally  "  promised  to  pay 
to  D  the  amount  of  a  partnership  debt,  due  from  A  and  B.  The  note  was  signed  by 
A  and  B,  not  as  individuals,  liut  in  their  partnershij)  firm,  and  by  C,  the  surety.  Held, 
that  this  note  could  not  be  treated  as  the  several  note  of  each  one  of  the  three,  but  as 
the  several  note  only  of  the  surety,  and  the  joint  note  of  A  and  B;  and  that,  on  the 
bankruptcy  of  A,  who  had  survived  his  partner  B,  the  holder  of  the  note  could  only 
rank  as  a  creditor  against  the  joint  estate. 

((•)  Maclae  v.  Sutherland,  3  Ellis  &  B  33.  Lord  CampbeU  said  :  "  The  expression 
in  the  note  by  which  a  separate  liability  is  sought  to  be  created  may  be  easily  detached 
in  construing  it,  and  taken  jvo  non  scn'/ita ;  as  against  the  shareholders  it  is  utterly  void, 
and  it  does  them  no  injury.  The  perfect  and  complete  contract  of  joint  liability  is  not 
vitiated  by  the  directors  having,  ultra  vires,  written  upon  the  same  i)iece  of  paper 
words  which  are  wholly  inoperative.  If  A  and  B  are  in  i)artnership,  and  A,  for  a  part- 
nership debt  lioiinjide  gives  a  promissory  note  in  the  partnership  firm,  there  seems  con- 
siderable difficulty  in  contending  that  A  and  B  may  not  be  jointly  sued  u])on  it,  because 
it  i)rofesses  to  hind  them  separately  as  well  as  jointly.  Why  should  the  security  perish 
instead  of  being  available,  when,  as  far  as  it  is  sought  to  be  enforced,  it  might  lawfully 
be  created,  and  it  expresses  the  Intention  of  the  parties  ?  Surely  this  would  be  unjust, 
and  contrary  to  well-known  legal  maxims." 

(w)  Norton  f  Seymour,  3  C.  B.  792.  In  this  case,  the  firm  was  "  Seymour  «&  Ayres"; 
and  the  note  was  signed  "  Tiiomas  Seymour,  Sarah  Ayrcs."  Manic,  J  said  :  "  As  to 
the  form  of  the  note,  it  is  to  be  observed  that  it  is  signed  by  Seymour  in  the  name  of 
himself  and  the  other  member  of  the  firm.  Sup])ose  there  was  no  authority  so  to  sign 
it,  other  than  the  general  authority  conferred  by  the  partnership,  I  should  hesitate  to 
say  that  one  of  two  partners  could  not  bind  the  other  by  sigjiing  the  true  names  of  both, 
instead  of  the  fictitious  name."     And  see  McGregor  i'.  Cleveland,  .5  Wend.  47.5. 

(r)  Drake  i'.  Elwyn,  1  Caines,  184.  The  note  in  this  case  was  signed  "  Ehvyn  & 
Co."  Kml,  J.  Siiid  :  "  As  such  a  signature  imjiorted  a  copartnership,  and  a  copartner- 
ship did  exist  at  the  time  between  Elwyn  and  the  other  defendants,  I  think  it  is  to  bo 
presumed  that  such  was  the  name  of  the  linn,  and  that  it  was  sufficient  to  cast  upon 
the  defendants  the  burden  of  proving  wiiiit  was  the  name  of  the  house  or  firm,  if  a  dif- 
ferent name  existed.  They  did  not  attempt  to  re[)cl  the  prcsuinidion,  and  of  eour.s't  it 
belonged  to  the  jury  to  consider  of,  and  to  draw  that  presumption."' 


en.  v.]  PARTNERS.  137 

firms.  For  all  the  names  must  be  truly  set  forth  in  tlie  declara- 
tion, and  the  same  party  cannot  be  plaintiff  and  defendant. (^) 
But  if  one  of  tliese  firms  makes  a  note  to  the  other,  and  tlie  other 
indorses  it  over,  the  indorsee  may  hold  either  or  both  firms. yz) 
So  the  death  of  the  partner  would  terminate  all  this  difficulty. (a) 
And  if  a  man  be  a  partner  in  two  firms,  both  of  whicli  use  the 
same  style,  and  he  draw  a  bill  or  note  in  that  style,  it  is  said 
that  the  holder  may  elect  which  firm  to  sue.(/>)  But  certainly 
the  circumstances  under  which  he  took  the  paper,  or  the  course 
of  business,  might  confine  him  to  one. 


(y)  Thus,  in  Mainwarinf^  v.  Newman,  2  B.  &  P.  120,  A  made  a  note,  payable  to 
himself,  and  to  13  and  C.  Tliis  note  was  indorsed  to  C,  D,  and  E.  HtlJ,  that  the  in- 
dorsees could  not  maintain  an  action,  either  against  all  the  indorsers  jointly,  or  against 
one  of  them  severally.  Not  against  them  all  jointly,  because  then  the  same  person 
would  be  both  plaintitl" and  defendant;  and  not  against  one  severally,  because  the  con- 
tract was  joint.  So  in  Neale  v.  Turton,  4  Bing.  149,  where  the  plaintiff,  a  holder  of 
shares  in  a  washing  company,  drew  bills  on  the  directors  of  the  company  for  goods 
fnrnished  by  him  ;  and  the  bills  were  accepted  by  the  secretary  of  the  company  "for 
the  directors  " ;  it  was  held,  that  the  plaintiff  could  not  recover  on  these  bills  against 
the  company.  Best,  C.  J.  said:  "It  may  be  admitted,  that  if  a  partner  were  to  draw 
ou  other  partners  by  name,  and  they  were  individually  to  accept,  he  might  recovci" 
against  them,  because  by  such  an  acceptance  a  separate  right  is  acknowledged  to  exist. 
But  that  is  not  the  case  here,  for  the  bills  are  drawn  on  the  directors  of  the  company, 
and  accepted  for  the  directors.  They  are  the  agents  of  the  company,  and  accept  as 
agents  of  the  company.  Tlie  case,  therefore,  is  that  of  one  partner  drawing  on  the 
whole  firm,  including  himself.  There  is  no  principle  by  which  a  man  can  be  at  the 
same  time  plaintiff  and  defendant."  And  see  Teague  r.  Hulibard,  8  B.  &  C.  345  ; 
Fox  V.  Frith,  10  M.  &  W.  131  ;  Lomas  v.  Bradshaw,  9  C.  B.  620  ;  Mahan  v.  Sherman, 
7  Blackf.  378;   Babcoek  v.  Stone,  3  ISIcLean,  172. 

(s)  Thus,  in  Pitcher  i'.  Barrows,  17  Pick.  361,  which  was  an  action  by  an  indorsee  of 
a  promissory  note,  made  by  a  firm  consisting  of  five  members,  and  payable  to  two  of 
the  same  number,  constituting  a  separate  firm,  S/taiv,  C.  J.  said  :  "  Though  no  ques- 
tion was  made  at  the  argument  as  to  the  original  form  of  this  contract,  it  may  be  proper 
to  make  a  remark  ujion  that  subject.  It  was  a  promise  by  five,  to  pay  to  two  of  their 
own  number  or  their  order,  and  as  an  original  contract  it  could  not  be  enforced  ut  law, 
for  the  obvious  reason  that  the  two  promisees  could  not  sue  themselves  as  promisors, 
and  the  other  three  promisors  were  not  liable  without  them.  But  this  is  a  difficulty 
attending  the  remedy  only,  not  the  right,  and  when  the  note  is  indorsed,  by  those 
having  a  right  to  indorse  it,  to  one  against  whom  there  is  no  such  exception,  whereby 
he  acquires  a  legal  interest  and  right  to  sue  in  his  own  name,  tlie  difficulty  vanishes. 
It  is  like  a  note  payable  to  one's  own  order,  which,  though  till  indorsement  not  a  good 
legal  contract,  becomes  such  by  the  Indorsement."  And  see,  to  the  same  effect, 
Blake  i\  Wheadon,  2  Hayw.  109;  Thayer  v.  Buffum,  11  Met.  398;  Davis  i>.  Briggs, 
39  Maine,  304;  Smith  v.  Lusher,  5  Cowen,  688. 

(a)  Byles  on  Bills,  6th  ed.,  p.  31. 

(6)  Baker  v.  Charlton,  Peake,  80;  McNair  v.  Fleming,  1  Mont,  on  Partn.  32,  note  r 
And  see  Swan  v.  Steele,  7  East,  210. 
12* 


133  NOTES   AND   BILLS.  [CH.    V. 

The  general  authoritj  of  one  partner  to  bind  the  rest  springs 
from  the  course  and  usage  of  business  in  which  the  firm  is  en- 
gaged. In  trading  partnerships,  the  power  of  one  partner  to  bind 
the  others  bj-  a  bill  or  note  given  in  the  usual  course  of  the  busi- 
ness undoubtedly  exists,  (c)  But  it  has  been  repeatedly  held, 
that  if  the  partnership  be  for  a  business  not  requiring  the  giving 
of  notes,  or  if  the  note  in  question  is  clearly  outside  of  the  busi- 
ness of  the  partnership,  the  partners  not  signing  are  not  bound. 
This  rule  applies  to  attorneys, (c?)  or  partners  in  the  practice  of 
medicine, (e)  or  in  keeping  tavern, (/)  or  in  farming.(g')  or  min- 
ing, (/j)    We  should,  however,  have  no  doubt  in  any  of  these  cases, 

(c)  Kimbro  v.  Bullitt,  22  How.  256. 

(d)  Thus,  in  Hedley  v.  Bainbridge,  3  Q.  B.  316,  which  was  an  action  against  an 
attorney  on  a  promissory  note,  given  by  his  partner  in  the  name  of  the  firm,  Lord 
Deitman  said :  "  No  doubt  a  debt  was  due  from  the  firm  ;  but  it  does  not  follow  that 
one  partner  had  authority  to  give  a  promissory  note  for  that  debt.  Partners  in  trade 
have  authority,  as  regards  third  persons,  to  bind  the  firm  by  bills  of  exchange,  for  it  is 
in  the  usual  course  of  mercantile  transactions  so  to  do  ;  and  this  authority  is  by  the 
custom  and  law  of  merchants,  which  is  part  of  the  general  law  of  the  land.  Bnt 
the  same  reason  does  not  apply  to  other  partnerships.  There  is  no  custom  or  usage 
that  attorneys  should  be  parties  to  negotiable  instruments  ;  nor  is  it  necessary  for  the 
purposes  of  their  business."     Levy  v.  Pyne,  Car.  &  AL  433,  is  to  the  same  effect. 

(e)  In  Crosthwait  v.  Ross,  1  Humph.  23,  it  was  held,  that  a  partner  in  the  practice 
of  physic  has  the  power  to  bind  his  copartner  by  the  execution  of  a  note  in  the  name 
Oi'  the  firm  for  the  purchase  of  all  things  necessary  to  be  used  by  thcni  in  their  voca- 
tion, such  as  medicines,  surgical  instruments,  and  the  like  ;  but  has  no  power  to  draw 
bills  or  make  notes  for  the  purpose  of  raising  money  ;  money  not  being  an  article  for 
which  such  a  firm  has  a  direct  use. 

{/)  In  Cocke  v.  Branch  Bank,  3  Ala.  175,  it  was  held,  that  one  of  a  firm  o^ 
tavern-keepers  has  no  authority  to  bind  his  copartners  by  a  note,  the  consideration  of 
which  has  no  connection  with  tlie  business  of  the  joint  concern  ;  and  the  want  of  such 
consideration  may  l)e  shown  in  defence  to  an  action  by  a  bona  Jide  holder  of  the  note. 
And  see  Williams  v.  Thomas,  6  Esp.  18. 

{g)  See  Kimbro  v.  Bullitt,  22  How.  267;  per  Litlledak,  J.  in  Dickinson  v.  Valpy, 
10  B.  &  C.  128.  The  case  of  Grcensladc  v.  Downer,  7  B  &  C.  635,  which  is  usually 
cited  in  support  of  this  proposition,  was  decided  on  another  ground. 

(/i)  Dickinson  v  Valpy,  10  B.  &  C.  128.  Littlrdale,  J.  said  :  "  In  the  case  of  an  or 
dinary  trading  ])artnersliip,  the  law  implies  that  one  partner  has  authority  to  bind 
another  by  drawing  and  accepting  bills,  because  the  drawing  and  accepting  of  bills  is 
necessary  for  the  purposes  of  carrying  on  a  trading  parlnershii) ;  but  it  does  not  follow 
that  it  is  necessary  for  the  purpose  of  carrying  on  the  business  of  a  mining  company. 
Evidence  of  the  nature  of  the  company  ought  to  have  been  given,  to  show  that,  in  ordef 
to  carry  into  effect  the  purposes  for  which  it  was  instituted,  it  was  necessary  that  indi 
vidual  members  should  have  the  power  of  binding  the  others  by  drawing  and  accept 
ing  l)iils  of  (.xciiange.  In  the  absence  of  any  such  evidence,  I  am  of  o))inion  that  it 
is  not  competent  to  individual  members  of  a  mining  company  (which  is  not  a  regular 
trading  com|)any)  to  bind  tlic  rest  by  drawing  or  accepting  bills.     One  of  several  per 


CH.  v.]  '  PARTNERS.  139 

if  the  concerns  were  of  such  magnitude  as  to  require  a  large 
capital,  and  credit,  tliat  a  note  given  Ijy  one  member  of  the  firm 
in  the  usual  course  of  the  business  would  bind  the  firm.  This 
would  depend  very  much,  however,  upon  the  usage  either  of  the 
particular  firm,  or  of  other  firms  engaged  in  the  like  business. (i) 

sons  jointly  interested  in  a  farm  has  no  power  to  bind  the  others  by  drawing  or  accept- 
ing bills,  because  it  is  not  necessary,  for  the  purposes  of  cairj'ing  on  the  fanning  busi- 
ness, that  bills  should  be  drawn  or  accepted.  The  object  of  persons  concerned  in  such 
an  undertaking  is  to  sell  the  produce  of  the  farm  ;  and  though,  with  a  view  to  such 
sale,  it  may  be  necessary  to  buy  many  things  in  order  to  raise  and  put  the  produce  in 
a  salable  state,  yet  it  is  not  necessary  for  that  purpose  that  bills  of  exchange  should 
be  drawn.  Even  if  that  were  necessary  for  the  purpose  of  carrying  on  a  mining  con- 
cern, though  not  for  the  purpose  of  managing  a  farm,  it  was  incumbent  on  the  plain- 
tiff, in  this  case,  to  have  shown,  either  from  the  very  nature  of  this  company,  that  it 
was  necessary,  or,  from  the  practice  in  other  similar  companies,  that  it  was  usual;  for 
if  it  were  necessary  or  usual,  it  would  be  reasonable  that  the  directors  should  have  such 
a  power,  and  the  law  would  imply  it."  Parke,  B.  said  :  "I  very  much  doubt  whether 
there  is  any  authority  in  raining  companies,  arising  by  implication  from  the  nature  of 
their  dealings,  (and  it  is  to  be  observed  that  there  was  no  proof  of  any  usage  to  do  this 
in  such  companies,)  to  draw  bills  of  exchange.  The  argument  would  go  to  this,  that 
all  persons  who  deal  in  the  produce  of  the  land  which  they  jointly  occupy,  because 
they  might  sell  that  produce  at  a  distance,  would  have  an  implied  power  given  to  each 
other  to  draw  bill*  of  exchange  for  the  purpose  of  receiving  payment  for  it.  If  the 
argument  was  valid,  it  would  show  tiiat  farmers  acting  in  partnership,  as  well  as  min- 
ers, would  have,  as  incidental  to  the  relation  of  partners,  an  authority  to  draw  bills  of 
exchange  upon  the  persons  to  whom  the  produce  of  the  land  was  sold.  There  is,  how- 
ever, no  necessity  to  decide  that  point,  because  there  is  no  ground,  at  all  events,  to  say 
that  mining  partners  have  an  implied  authority  from  one  another,  arising  from  the  na- 
ture of  tlicir  business,  to  draw  such  a  bill  of  exchange  as  this  ;  for,  upon  the  face  of  it, 
this  is  a  bill  drawn  by  the  company  upon  themselves,  and  though  it  is  in  form  treated 
as  a  bill  of  exchange,  it  is  in  substance  only  a  promissory  note  ;  and  the  effect  of  say- 
ing that  one  member  of  a  company  like  this  can  draw  such  bills  or  promissory  notes 
would  be,  that  each  of  the  partners  in  the  concern  would  have  the  power  of  pledging 
the  others,  not  oidy  to  the  extent  of  the  goods  the  company  might  sell  in  the  course 
of  their  ordinary  dealings,  but  without  any  limit  at  all,  inasmuch  as  one  partner  might 
raise  money  to  any  amount  by  drawing  bills  of  exchange,  and,  if  they  were  passed 
into  the  hands  of  innocent  indorsees,  the  partners  would  be  liable  to  the  full  extent  of 
their  fortunes." 

(i)  In  Kimbro  v.  Bullitt,  22  How.  2.56,  268,  a  bill  of  exchange  was  drawn  by  one 
partner  of  a  firm  which  was  engaged  in  fiirming,  in  running  a  steam  saw-mill,  and  in 
trading.  The  court,  per  ClijforJ,  J.,  were  of  the  opinion  that,  if  the  firm  had  been  en- 
gaged in  farming,  no  power  would  have  existed  in  one  partner  to  bind  the  others  by  a 
bill  or  note,  but  that,  as  they  were  also  engaged  in  trading,  such  power  existed.  In 
respect  to  the  steam  saw-mill,  Clifford,  J.  said  :  "  They  were  also  engaged  in  running  a 
steam  saw-mill,  for  manufacturing  purposes  ;  and  common  observation  will  warrant  the 
remark,  that  those  who  engage  in  that  business  always  want  capital  to  carry  it  on,  and 
frequently  find  it  necessary  to  ask  for  credit.  Like  those  engaged  in  other  branches  of 
manufactures,  they  buy  and  sell,  and  have  occasion  to  remit  money  and  collect  it  from 
distant  places."     See  however,  contra,  as  to  a  steam  saw-mill  being  within  the  rule, 


140 


KOTES   AND    BILLS. 


[CH.  V. 


Members  of  a  joint-stock  company  have  no  power,  as  siicli,  to 
draw  bills  or  make  notes  in  the  name  of  the  company,  (j')  And 
although  there  may  be  occasional  or  special  partnerships,  and 
within  their  limits  the  whole  law  of  partnership  applies,  the  mere 
joint  promise  of  two  to  make  a  certain  purchase  and  pay  for  it  in 
good  negotiable  notes,  to  be  indorsed  by  them,  does  not  consti- 
tute them  partners,  or  otherwise  authorize  one  of  them  to  in- 
dorse in  the  name  of  the  other. (A:) 

Suretysliip  is  not,  in  general,  within  the  business  of  a  partner- 
ship. And  therefore,  if  to  a  bill  or  note  already  signed,  a  part- 
ner writes  the  name  of  his  firm,  with  the  word  "  surety  "  added, 
this  does  not  bind  his  partners  without  their  assent. (/)  And  if  a 
partner  sign  the  name  of  his  firm,  ostensil)ly  as  makers  of  a  note, 
but  in  fact  as  sureties,  and  this  is  known  to  the  payee,  he  cannot 
enforce  the  paper  against  thera.(/>i)  The  same  principle,  of 
course,  applies  to  all  cases  of  making  or  indorsing  bills  or  notes 
by  one  partner,  on  behalf  of  his  firm,  for  the  accommodation  of 
third  persons. (w)  But  it  is  otherwise  where  one  partner,  for  the 
benefit  of  the  firm,  exchanges  the  acceptance  of  the  firm  for 
the  acceptance  of  a  third  person  ;  both  acceptances  being  for 
the  same  amount.     In  that  case  the  firm  will  be  held.(o) 

If  it  appears  upon  the  face  of  a  bill  or  note,  that  it  was  signed 
by  a  partnership  as  sureties  merely,  this  will  be  notice  to  any 
one  who  may  take  it,  that  it  was  given  out  of  the  course  of 
the  partnership  business.  Therefore,  no  subsequent  holder  can 
recover  on  it,  without  proving  the  assent  of  all  the  partners 
to  the  signature.  But  if  there  is  nothing  on  the  face  of  the 
paper  to  indicate  for  what  purpose  it  was  given,  any  one  who 
shall  take  it  bona  fide^  without  knowledge  that  it  was  given  out 


Lanier  v.  McCabe,  2  Fla.  32.  On  the  question  of  usage  sec  the  case  of  Dickinson  t*. 
Valpy,  10  B.  &  C.  128. 

[j)  Brainah  v.  Roberts,  3  Ring.  N.  C  963;  Bait  i'.  Moncll,  12  A.  &  E.  745;  Dick 
insoii  V.  Valpy,  supra. 

[k)  Biillou  V.  Spencer,  4  Cowcn,  1C3. 

(/)  Foot  V.  Rabin,  19  Johns.  1.'54;  Boyd  v.  Plumb,  7  Wend.  309;  Butler  v.  Stock 
ing,  4  Scld  408;  Rollins  w.  Stevens,  31  Maine,  4.04;  Andrews  v.  Planters'  Bank,  7 
Smedcs  &  M.  192  ;  Wagnon  v.  Clay,  1  A.  K.  Marsh.  257. 

(m)  Bank  of  Rochester  v.  Bowcn,  7  Wend.  158;  Rolston  v.  Click,  1  Stew.  526. 

(h)  Stall  V.  Cafskill  Bank,  18  Wend.  466  ;  Beach  v.  State  Bank,  2  Ind.  488;  Che 
nowith  V.  Cliambcrlin,  6  B.  Mon.  60;  Sweetscr  v.  French,  2  Cush.  309;  Lavcrty  r 
Burr,  i  Wend   529. 

(o)   Gano  r.  Samuel,  14  Ohio,  592.     See  Darling  v.  March,  22  Maine,  184. 


CH.  v.]  PARTNERS.  141 

of    the   course   of    the    partnership   business,   will    be    protect 

It  has  been  said,  that  if  the  maker  of  a  note  carries  it  to  a 
bank  to  get  it  discounted  on  his  own  account,  or  transfers  it 
to  a  third  person,  with  the  name  of  a  firm  indorsed  thereon, 
the  transaction  on  its  face  shows  that  it  is  a  mere  accommo- 
dation indorsement,  or  the  note  would  not  be  in  the  hands 
of  the  maker  ;  and  the  bank  or  person  who  receives  it  from 
the  maker  being  thus  chargeable  with  notice  that  the  firm 
are  mere  sureties  of  the  maker,  and  that  it  has  not  passed 
through  their  liands  in  the  ordinary  course  of  partnership  busi- 
ness, the  members  of  the  firm  who  have  been  made  sureties 
witliout  their  consent  are  not  liable  to  such  holder  of  the  note. (7) 

Sometimes  a  partnership  name  is  signed,  in  form,  as  surety 
for  a  third  person,  wiiile  really  the  undertaking  is  for  their 
own  debt,  and  the  note  is  given  for  their  own  benefit.  In  such 
cases  the  substance  of  the  transaction,  and  not  the  form,  will 
be  regarded.  Thus,  if  a  partner,  acting  for  the  firm,  procures 
A.  who  is  a  debtor  of  the  firm,  to  give  his  note  for  the  amount 
of  the  debt  to  C,  who  is  a  creditor  of  the  firm,  and  thereupon 
the  partner  adds  the  partnership  name  to  the  note,  as  surety, 
and  C  takes  it  in  payment  of  his  debt,  the  firm  will  be  liable  on 
the  note.(r) 

The  giving  of  accommodation  paper  is  considered  as  so  far 
out  of  the  line  of  regular  commercial  business,  that,  if  such 
paper  be  made  and  given  by  one  member  of  a  firm,  the  other 
partners  will  not  be  holden  to  any  party  chargeable  with  notice 
or  knowledge  that  it  is  accommodation  paper,  unless  it  was 
made  with  their  consent,  (s)  But  when  a  bill  or  note  has  been 
given  in  the  partnership  name,  witli  the  consent  of  all  the 
partners,  for  the  accommodation  of  a  third  persoii,  it  has  been 
held  that  such  bill  or  note  may  be  renewed  from  time  to  time 
by  a  single  partner.  (^) 

(p)  See  cases  supra. 

(q)  Per  Walworlh,  C.  in  Stall  v.  Catskill  Bank,  18  Wend.  478  ,  Bank  of  Vergennes 
t'.  Cameron,  7  Barb.  143.  See  Austin  v.  Vandcrmark,  4  Ilill,  259;  Gansevoort  r. 
Williams,  14  Wend.  133. 

(r)  Langan  v.  Hcwett,  13  Smcdes  &  M.  122. 

(s)  Austin  V.  Vandcrmark,  4  Hill,  259  ;  Stall  v.  Catskill  Bank,  18  Wend.  466 ;  Bank 
of  VcK/jennes  v.  Cameron,  7  Barb.  143;  Swcctser  v.  French,  2  Cush.  309, 

(0  i)undass  v.  Gallagher,  4  Penn.  State,  205. 


142  NOTES  AND   BILLS.  [CH.  V. 

And  previous  dealings,  or  recognitions  of  previous  notes  or 
bills  of  like  kind,  or  other  similar  circumstances,  may  indicate 
the  consent  of  the  other  partners  in  the  case  of  accommodation 
paper,  or  paper  bearing  their  signature  as  sureties,  in  like  man- 
ner as  has  been  already  stated  in  reference  to  the  authority  of 
agents. 

It  may  be  added,  that  subsequent  recognition  or  ratification 
of  negotiable  paper,  by  partners,  has  the  same  effect  as  when 
this  occurs  in  a  case  of  agency.  And  a  ratification  need  not 
be  express  ;  it  may  be  inferred  from  the  acts  or  omissions  of 
the  other  partners,  after  they  know,  or  have  tlie  means  of  know- 
ing, of  the  acts  of  the  individual  partner,  (zf)  So  where  it  is 
necessary  for  the  plaintiff  to  show  the  assent  of  the  copartners 
to  the  giving  of  a  bill  or  note,  he  need  not  show  an  express 
assent ;  it  may  be  implied  from  circumstances,  such  as  the 
common  course  of  business  of  the  firm,  or  the  previous  course 
of  dealing  between  the  parties. (v) 

Partners  are  actual  and  ostensible  ;  and  this  they  may  be, 
if  well  known,  although  their  names  be  not  used  in  the  style 
of  the  firm  ;  in  which  case  they  are  liable  both  on  the  ground 
of  the  credit  they  give  to  the  concern,  and  also  of  the  profits 
which  they  take  from  it.  Or  they  are  secret,  in  which  case 
they  arc  liable  on  the  ground  of  their  participation  in  the 
profits  ;  or  nominal  only,  in  which  case  they  are  liable  because 
of  the  credit  they  give,  by  holding  themselves  out,  or  sutfering 
themselves  to  be  held  out,  as  partners.  But  there  is  a  ma- 
terial difference  between  these  kinds  of  partners,  in  case  of 
dissolution  and  notice.  A  secret  partner  is  not  liable  for  debts 
contracted  after  he  leaves  the  partnership,  although  ho  gives 
no  notice  ;  for  liis  taking  of  profits,  wliich  is  the  only  ground 
of  his  lia.l)ility,  has  ceased. (?<;)  A  nominal  partner,  whether 
actual  or  not,  is  liable,  after  leaving  tlie  firm,  certainly  to  those 
wlio  had  formerly  dealt  with  the  firm,  and  have  no  notice  or 
knowledge  of  liis  leaving  the  firm,  and  no  such  means  of 
knowii^dgc  as  binds  them.      And    he   may  bo   bound   even  to 

(h)  Swcctscr  V.  French,  2  Cush.  309. 

(i)  Swcctscr  V.  Frcndi,  2  Cush.  309  ;  Beach  v.  State  Bank,  2  Ind.  488  ;  Butler  v. 
Stockiiif;,  4  Seld.  408 ;  Duncan  i'.  Lownrlcs,  3  Camp.  478;  Ganscvoort  w.  Williams, 
14  Wend.  133  ;  Darling  v.  March,  22  Maine,  184. 

(w)  Sec  1  I'arsons  on  Cont.  143,  note  h. 


CH.  v.]  PARTNERS.  143 

a  new  customer,  wlio  comes  to  tlie  firm  in  tlic  belief  that  he 
is  a  partner,  and  on  his  credit,  with  a  sufficient  reason  for  liis 
belief  (x) 

A  new  partner  is  not  bound  for  old  deljts,  unless  he  expressly 
assume  them,  or  agree  with  the  partners  to  be  bound  ;  or  unless 
this  assumption  or  agreement  may  be  inferred  from  his  enter- 
ing at  once  into  the  whole  business,  interest,  and  profits  of  the 
concern  ;  and  such  a  course  would  generally  imply  that  he 
takes  all  this  benefit  and  property  cu77i  oriere,  and  is  therefore 
bound  by  the  liabilities.  But  if  in  this  way  he  is  defrauded 
into  a  disastrous  connection,  this  should  not  bind  him  to- 
wards creditors  with  whom  there  are  no  new  dealings  on  his 
credit,  and  from  whom  there  is  no  consideration  moving  to 
liim.(v/) 

A  creditor  discharges  the  former  partners  and  accepts  instead 
the  responsibility  of  a  new  firm,  either  expressly,  or  by  continu- 
ing to  deal  with  the  new  firm,  after  notice  of  the  transfer  of  his 
account,  without  any  objection,  provided  this  be  done  or  accom- 
panied with  such  words  or  acts  as  indicate  his  purpose  of  dis- 
charging the  former  partners,  but  not  otherwise. (2:) 

Notice  of  the  dissolution  of  a  firm,  or  of  the  retiring  of  a  part- 
ner, should  always  be  given  in  the  usual  way.  This  is  personal 
notice  by  letter  or  otherwise  to  all  who  usually  do  business  with 
the  firm,  and  to  all  creditors  of  the  firm,  and  public  notice  by 
advertisements.  If  this  is  done,  the  retiring  partner  is  not  re- 
sponsible for  the  subsequent  debts  of  the  firm,  (a)  Nor  is  he 
responsible  to  any  one  who  has  actual  notice  of  his  retirement.(&) 
Death  of  a  general,  or  even  of  a  special  partner,  operates  a 
dissolution  of  the  firm,  and  as  respects  the  estate  of  a  deceased 
partner,  no  notice  need  be  given.  And  it  has  recently  been  held 
that  the  surviving  partners  are  not  bound  to  give  notice  of  that 
fact  in  order  to  terminate  their  liability  for  the  acts  of  each 
other. (6a)     In  the  case  cited  in  our  note,  there  was  no  evidence 


(x)  1  Parsons  on  Cent.  144,  145,  and  notes. 

ly)  1  Parsons  on  Cont.  166,  note  i.    See  Shirreff  v.  Wilks,  I  East,  48;  Vere  ». 
Ashby,  10  B.  &  C.  288  ;  Battley  v.  Lewis,  1  Man.  &  G.  155. 
(s)  Kirwan  v.  Kirwan,  2  Cromp.  &  M.  617. 
(a)  Parsons,  Elements  of  Merc.  Law,  2d  ed.,  172,  and  notea. 
(6)  Ibid. 
(6a)  Marlett  v.  Jackman,  3  Allen,  287. 


144  NOTES   AND   BILLS.  [CH.  V. 

that  the  surviving  partners  knew  of  the  decease  ;  but  the  court 
said  that,  even  if  they  had  such  knowledge,  they  would  not  be 
obliged  to  give  notice,  (c) 

On  the  dissolution  of  a  firm  by  the  death  of  one  of  the 
members,  the  survivors  are  joint  tenants,  and  not  tenants  in 
common,  so  far  that  they  take  the  property  of  the  firm  by 
survivor^^liip,  for  all  purposes  of  holding  and  administering  the 
estate,  until  the  effects  are  reduced  to  money  and  the  debts 
are  paid  ;  (d)  but  the  harsh  doctrine  of  the  jus  accrescendi, 
which  is  an  incident  of  joint  tenancy  at  common  law,  does 
not  apply. (f')  It  is  an  unquestioned  principle  of  law,  that 
after  a  dissolution  tlie  authority  of  a  former  partner  to  bind 
the  others  is  gone,  except  as  to  the  settlement  of  the  estate 
of  the  old  partnership,  and  it  is  usually  stated  that  he  has 
no  power  to  malvC  any  new  contracts.  It  is  obvious,  however, 
that  a  strict  construction  of  this  rule  might  prevent  the  partner 
whose  duty  it  is  to  settle  up  the  estate  from  accomplishing  this 
olijcct  in  the  most  judicious  manner.  So  far  as  the  question  is 
still  an  open  one,  we  should  consider  the  true  rule  to  be,  that  no 
contract  can  be  made  by  one  partner  after  dissolution  by  which 
the  otliers  will  be  bound,  unless  such  contract  is  an  appropriate 
means  for  settling  up  the  business  of  the  concern  in  the  most 
judicious  manner.  Their  duty  is  similar  in  many  respects  to 
that  of  trustees  and  agents, (/)  and  they  should,  in  settling  up 
the  affairs  of  the  old  firm,  have  all  the  riglits  which  agents 
usually  have  by  the  usages  of  the  business  in  which  the  old  firm 
was  engaged.  In  the  language  of  the  Supreme  Coiirt  of  Maine, 
"  The  dissolution  operates  as  a  revocation  of  all  authority  for 
making  new  contracts.  It  does  not  revoke  the  authority  to 
arrange,   liquidate,   settle,   and   pay  those   before   created. "(^) 


(c)  Sec  Paisons,  Elements  of  Merc.  Law,  2(1  cd.,  172,  192. 

{d)  ])yer  v.  Clark,  5  Met.  5G2  ;  Muriay  v.  Mumfonl,  6  Cow  en,  441. 

{e)  Buckley  v.  Rarlicr,  6  Exch.  1G4,  1  Eng.  L.  &  Eq.  ."JOG. 

(/)  Wiishhiirn  v.  Goodman,  17  Pick.  .519.  And  in  Parker  v.  Pliillips.  2  Ciisli.  175, 
178,  the  court  said  :  "  Though  n  partncrsliij)  is  dissolved,  and  the  mutual  authority  of 
tlic  partners  to  l)ind  each  other,  as  to  future  transactions,  has  ceased,  yet  to  some  extent, 
and  for  some  purposes,  in  regard  to  past  transactions  the  partnershij)  still  exists."  See 
also  Caldwell  v.  Stileman,  1  Rawie,  212;  Beak  v.  Beak,  3  Swanst.  G27. 

{fj)  Darling  r.  March,  22  Maine,  184.  Sec  also  Gannett  v.  Cunningham,  34 
Maine,  56. 


CII.  v.]  PARTNERS.  145 

Thus,  ill  a  case  where  a  bill  of  exchange  was  drawn  in  blank 
l)y  one  partner,  to  the  order  of  the  firm,  and  indorsed  belbre  the 
dissolution  of  the  firm,  it  was  held  that  it  might  after  tiiat  event 
be  filled  uj)  and  negotiated. (/i)  And  after  dissolution  one  part- 
nei'  may  waive  demand  and  notice,  this  being  considered  as 
merely  a  modification  of  an  existing  liability  ;  (t)  he  may  also, 
it  has  been  held,  lawfully  assign  to  a  creditor  of  the  firm  a 
demand  due  to  the  partnership  ;  (/')  or  acknowledge  in  the  part- 
nership name,  after  dissolution,  a  balance  due  from  the  ]>artner- 
ship.(/i:)  If  a  note  is  signed  by  a  firm  payable  to  tlie  order  of 
one  of  its  members,  this  person  may  indorse  tlie  note  after  the 
dissolution  of  the  firm  so  as  to  bind  it.(/) 

In  Pennsylvania  the  courts  have  fully  adopted  the  princijde, 
that  as  to  past  transactions  the  partnership  continues  until  they 
are  settled.  Thus  it  is  held  that  after  dissolution  a  partner  may 
borrow  money  to  pay  partnership  debts, (w)  and  may  renew  the 
notes  of  the  firm ;  (n)  or  give  notes  in  the  firm  name  in  payment 
of  firm  debts. (o) 

There  are,  however,  other  authorities,  which  construe  the 
rule  that  a  partner  cannot  make  a  new  contract  after  dissolu- 
tion very  strictly,  and  hold  that  the  power  of  a  surviving  part- 
ner not  only  does  not  extend  to  the  giving  of  a  note,(/^)  or 


(h)  Usher  v.  Dauncey,  4  Camp.  97.  In  Lewis  (-•.  Reilly,  1  Q-  B.  349,  to  an  action 
by  an  indorsee  on  a  bill  drawn  by  defendants  A  and  B,  as  partners,  payable  to  their 
own  order,  and  also  indorsed  by  them,  defendant  B  pleaded  that  the  bill  was  indorsed 
by  A  to  plaintiff,  in  the  partnership  name,  after  a  dissolution  of  the  partnership,  with- 
out the  privity  or  consent  and  in  fraud  of  defendant  B,  and  for  A's  private  purposes  ; 
and  that  plaintiff  knew  of  the  dissolution  at  the  time  of  the  indorsement.  /Ir/d,  after 
verdict  for  defendant,  that  the  plea  was  bad  for  not  showing  that  plaintiff  had  colluded 
with  A,  or  was  privy  to  the  fraud.  Lord  Denman  said  :  "  It  is,  perhai)s,  doing  no 
violence  to  language  to  say  that  the  partnership  could  not  be  dissolved  as  to  this  bill, 
80  as  to  prevent  it  from  being  indorsed  by  either  defendant  in  the  name  of  the  firm." 

((■)  Darling  v.  March,  22  Maine,  184. 

(j)  Milliken  v.  Loring,  37  Maine,  408. 

(k)  Ide  V.  Ingraham,  5  Gray,  106. 

(/)  Temple  v.  Seaver,  11  Cnsh.  314. 

(ra)  Estate  of  Davis  &  Desauque,  .5  Whart.  530. 

(n)  Ibid. ;  Brown  v.  Clark,  14  Penn.  State,  469. 

(o)  Robinson  v.  Taylor,  4  Barr,  242. 

[p)  Lockwood  V.  Comstock,  4  McLean,  383  ;  Bank  of  Port  Gibson  v.  Baugh,  9 
Smedes  &  M.  290  ;  Hamilton  v.  Seaman,  1  Ind.  185  ;  Perrin  v.  Keene,  19  Maine,  355; 
Lusk  V.  Smith,  8  Barb.  570.  In  Mitchell  v.  Ostrom,  2  Hill,  520,  the  note  in  suit  was 
signed,  "  Late  firm  M.,  J.,  E.,  &  Co. 

Vol.  I.— K 


146  NOTES   AND   BILLS.  [CH.  V. 

acceptihg  of  a  bill, (5')  in  the  firm  name,  after  dissolution,  for 
a  pre-existing  debt  of  the  firm,  even  though  it  be  antedated 
so  as  to  bear  date  before  the  dissolution, (r)  but  also  that  he 
cannot  renew  bills  or  notes  given  by  the  partnership  before 
dissolution,  so  as  to  bind  lijs  former  copartners, (5)  or  indorse 
notes  given  to  the  firm  before  dissolution,  so  as  to  vest  the  title 
in  the  indorsee. (/) 

Nor,  it  has  been  held,  can  he  indorse  notes  belonging  to  the 
firm  at  the  time  of  the  dissolution,  so  as  either  to  render  the 
other  partners  liable  on  his  indorsment,  or  to  pass  a  valid  title  to 
the  notes. (w)  It  has  even  been  doubted  whether  a  note  indorsed 
before  dissolution,  but  negotiated  afterwards,  will  bind  the 
firm ;  (v)  but  if  negotiated  in  good  faith  for  the  purposes  for 
which  it  was  indorsed,  we  are  inclined  to  think  it  would,  al- 
though the  contrary  doctrine  has  been  held.(i^.') 

One  partner,  after  dissolution,  may,  of  course,  bind  his  copart- 
ner by  any  of  the  above  acts,  if  he  have  an  express  authority  for 
that  purpose.  And  such  authority  may  be  given  by  parol,  al- 
though the  terms  upon  which  the  partnership  was  dissolved  should 
be  in  writing.  Thus,  where  a  retired  partner  stated  that  he  left 
the  assets  and  securities  of  the  firm  in  the  hands  of  tlie  continuing 
partner,  for  the  purpose  of  winding  up  the  concern,  and  that  he 
had  no  objection  to  his  using  the  partnership  name,  it  was  held 
that  the  jury  were  justified  in  finding  that  the  continuing  partner 
had  authority  to  indorse  promissory  notes  so  left  in  his  hands,  in 


(9)  Tombeckbcc  Bank  v.  Duincll,  5  Mason,  56. 

(r)  Wri-rhtson  i;.  PuUan,  1  Stark.  375  ;  Lansing  v.  Gaine,  2  Johns.  300. 

(s)  Palmer  i'.  Dodge,  4  Oliio  State,  21  ;  National  Bank  r.  Norton,  I  Hill,  572  ;  Par- 
ker V.  Cousins,  2  Grat.  372;  Martin  v.  Kirk,  2  Humph.  529;  Longr.  Story,  10  Misso. 
636  ;  Stone  v.  Chamberlin,  20  Ga.  259.  In  Bank  of  South  Carolina  v.  Humphreys,  1 
McCord,  388,  the  firm,  during  the  continuance  of  the  partnership,  had  written  a  letter 
to  the  holder  of  a  note  against  them,  requesting  permission  to  renew  it,  until  the  e,\j)ira- 
tion  of  a  certain  time,  during  which  time  a  renewal  was  given  by  one  partner,  but  sulv 
sequent  to  the  dissolution.     Ilelil,  that  the  firm  was  not  bouniL 

(/)  Sanford  v.  Mickles,  4  Johns.  224.  See  also  Geortner  f.  Trustees,  &.O.,  2  Barb. 
«25. 

(«)  Abel  V.  Sutton,  3  Esp.  108  ;  Sanford  v.  Mickles,  4  Johns.  224  ;  Parker  v.  Ma- 
comber,  18  Pick.  505;  Humphries  i-.  Chastain,  5  Ga.  166. 

{v)  Per  Lord  Kinijon  in  Abel  i\  Sutton,  supra. 

(w)  In  Glasscock  v.  Smith,  25  Ala.  474.  The  question  was  raised,  but  not  decided, 
in  Mechanics'  Bank  v.  Hildrcth,  9  Cush.  359. 


CH.  v.]  PARTNERS.  147 

the  partnership  name. (2;)  So  an  authority  hy  parol  to  continu- 
ing partners  to  sell  a  negotiable  note  made  to  the  firm  before  dis- 
solution, will  authorize  an  indorsement  of  such  note,  "without 
recourse,"  in  the  name  of  the  firm.(//)  It  seems  however,  to  be 
well  settled,  that  an  autliority  given  to  one  partner  "  to  close  all 
business  transactions  of  the  late  firm";(c)  -'to  settle  up  the  busi- 
ness of  the  firm; "(«)  "  to  settle  all  demands  in  favor  of  or  against 
the  firm"  ;{b)  "to  settle  business  of  tlie  firm,  and  for  that  pur- 
pose to  use  their  name  "  ;  (c)  "  to  settle  business  of  the  firm  and 
sign  its  name  for  that  purpose"  ;  (iZ)  "to  use  the  name  of  the 
firm  in  liquidation,  only,  of  past  business  "  ;  (e)  confers  no  more 
power  than  the  partner  would  have  by  the  general  principles  of 
the  law  of  partnership.  In  one  case,  however,  the  court  were 
of  the  opinion  that  the  authority  given  to  use  the  partnership 
name  conferred  a  greater  power  than  would  have  otherwise  ex- 
isted, and  hold  that  it  was  for  the  jury  to  find,  from  the  course 
of  trade,  and  the  usage  and  custom  of  merchants,  as  well  as 
from  the  notice  itself,  whether  this  power  extended  to  the  re- 
newal of  a  note  which  had  been  discounted  at  a  bank  previous 
to  the  dissolution. (/)  And  if  a  partner,  under  such  an  au- 
thority, receives  a  note,  in  payment  of  a  debt  due  to  the  firm, 
payable  to  bearer,  it  seems  that  the  legal  title  to  such  note  will 
vest  in  such  partner  alone  ;  and,  therefore,  he  will  be  able  to  give 
a  good  title  to  it  by  delivery. (g-) 


(x)  Smith  V.  Winter,  4  M.  &  W.  454.  In  Burton  v.  Issitt,  5  B.  &  Aid.  267,  by  a 
deed  of  dissolution  of  partnership,  a  power  was  reserved  to  the  remaining  partners  to 
use  the  name  of  the  retiring  partner  in  the  prosecution  of  all  suits.  In  an  action  in 
which  judgment  had  been  obtained  by  all  the  partners  before  the  dissolution,  it  was  held, 
that  the  remaining  partners  had  authority  under  that  power  to  give  to  the  defendant  a 
note  for  the  payment  of  the  sixpences,  under  the  Lords'  Act,  on  behalf  of  themselves 
and  the  retiring  partner. 

(y)  Yale  ;;.  Eames,  1  Met.  486. 

(2)  Palmer  v.  Dodge,  4  Oiiio  State,  21. 

(a)  Parker  v.  Cousins,  2  Grat.  372;  Long  v.  Story,  10  Misso.  636  ;  Martin  v.  "Wal- 
ton, 1  McCord,  16;  Parker  v.  Macomber,  18  Pick.  505. 

(6)  Lockwood  v.  Comstock,  4  McLean,  383. 

(c)  National  Bank  v.  Norton,  1  Hill,  572. 

(d)  Hamilton  v.  Seaman,  1  Ind.  185. 

(e)  Martin  v.  Ivirk,  2  Humph.  529. 
(/)  Myers  v.  Huggins,  1  Strob.  473. 

(g)  In  Parker  v.  Macomber,  18  Pick.  505,  where  the  individual  note  of  a  partner, 
nadc  after  the  dissolution  of  the  partnership,  was  transferred  by  the  holder  to  the  firm, 


14S  NOTES   AND    BILLS.  [CH.  V. 

As  to  any  persons  who  have  not  been  properly  notified  of  the 
dissolution,  the  partners  will  be  bound  by  the  acts  of  a  copartner, 
the  same  as  before  dissolution. (/t)  But  in  one  case  it  was  held 
that  an  attorney  who  knew  that  a  dissolution  was  intended  and 
agreed  on,  but  did  not  know  that  it  had  taken  place,  as  was  in 
fact  the  case,  could  not  hold  the  firm  on  an  acceptance  made  by 
a  partner  in  the  name  of  the  firm  after  the  dissolution. (i) 

Ratification  and  confirmation  will  have  the  same  effect  after  a 
dissolution,  as  if  the  partners  who  adopt  the  signature  and  con- 
firm it  were  still  partners,  (j) 


by  an  indorsement  in  blank,  in  pajTnent  of  a  debt,  it  was  held,  that  such  note,  being 
parable  to  bearer,  might  be  legally  transferred  to  a  third  person  by  another  partner,  who 
was  authorized  to  settle  the  concerns  of  the  partnership.  Shaw,  C.  J.  said  :  "  It  is 
contended  that,  by  this  indorsement,  deliveiy,  and  payment,  the  property  in  the  note 
vested  in  all  tlie  members  of  the  late  firm,  and  though  it  was  under  a  bhink  indorse- 
ment, it  could  not  be  jjasscd  by  delivery,  so  as  to  vest  a  valid  title  in  the  holder,  with- 
out the  act  of  all  the  pai-tners.  But  we  are  of  opinion  that  this  defence  cannot  be 
maintained.  Being  under  a  blank  indorsement  and  passing  by  delivery,  the  title  vested 
in  any  person  or  persons  legally  becoming  tiie  holders  for  value.  Now  we  think  the 
autliority  given  to  the  two  partners,  the  Howlands,  to  collect  the  debts  and  settle  the 
affairs  of  the  late  firm,  gave  them  authority  to  receive  negotiable  notes  and  drafts,  as  a 
means  of  obtaining  payments.  If  so,  they  must  be  deemed  to  have  received  this  note, 
as  agents  to  settle  ;  they  received  it  in  their  own  right,  and  the  properly  vested  in  them. 
This  being  the  case,  as  they  would  take  merchandise,  bank-stock,  or  otiicr  articles 
affording  the  means  of  raising  money  and  getting  in  the  debts,  they  had  a  right  to  dis- 
pose of  the  property  for  the  same  jjurpose  ;  and  it  being  a  mercantile  agency,  each  had 
the  requisite  authority.  As  they  took  the  note  under  a  blank  indorsement,  and  it  was 
in  a  condition  to  pass  by  a  mere  delivery,  no  indorsement  of  the  firm  was  necessary ; 
and  the  want  of  authority,  arising  from  a  want  of  legal  power  to  make  such  indorse- 
ment, applicable  to  the  case  of  the  other  note,  does  not  apply  to  this.  If  it  be  said  that 
they,  being  agents,  took  this  note  for  the  use  and  benefit  of  all  the  members  of  the  late 
firm,  and  so  the  title  vested  in  them,  wo  think  it  is  necessary  to  distinguisli  between  tho 
legal  and  the  beneficial  interest.  Undoubtedly  the  beneficial  interest  was  in  the  mem- 
bers of  the  late  firm  ;  and  the  agents  were  bound  to  render  an  account  of  the  property 
and  apply  the  proceeds  to  their  benefit.  But  this  is  quite  consistent  with  their  taking 
a  legal  interest  themselves  in  tiie  security,  in  the  same  manner  as  if  tliey  had  taken 
goods,  bank-notes,  or  other  property,  to  be  turned  into  money  and  accounted  for,  pur- 
suant to  the  trust  and  autliority  reposed  in  tlicm  for  that  purpose." 

(A)  Whitman  v.  Leonard,  3  Pit-k.  177  ;  Tombeckbec  Bank  v.  Dumell,  .')  Mason,  56; 
Lansing  v.  Gaine,  2  Johns.  300  ;  Bristol  v.  Sprague,  8  Wend.  423. 

(i)  Paterson  v.  Zachariali,  1  Stark.  71. 

{_;■)  Waitc  v.  Foster,  33  Maine,  424;  Leonard  v.  Wildes,  36  Maine,  26.5;  Lusk 
V.  Smith,  8  Barb.  570;  Chase  i;.  Kendall,  6  Ind.  304;  Eaton  v.  Taylor,  10  Masa 
M. 


en.  v.]  LUNATICS.  149 

SECTION    YI. 

OF  LUNATICS. 

If  these  are  under  guardianslup,  thej  come  under  the  statu- 
tory disability. (A')  If  not,  their  natural  disability  applies.  But 
to  such  a  case,  somewhat  of  the  same  principle  which  governs  as 
to  the  incapacity  of  infants  also  applies.  If  this  natural  inca- 
pacity is  not  in  fact  perfect,  and  if  an  insane  or  an  imbecile  per- 
son, while  temporarily,  or  apparently,  sane  enough  to  transact 
ordinary  business,  gives  his  note  for  necessaries,  and  it  is  received 
in  good  faith,  it  would  seem  to  be  proper,  for  the  sake  of  the  lu- 
natic himself,  that  the  note  should  be  valid.  Or  if  the  note  were 
set  aside,  because  it  fixed  a  certain  price  or  amount  whicii  ouglit 
to  be  left  open  to  inquiry,  still  his  liability  on  the  contract  should 
be  established,  and  the  note  might  be  evidence,  of  more  or  less 
value,  of  the  quantum  which  should  be  paid.(Z) 

It  is  undoubtedly  now  true,  that  a  man  may  "  stultify  him- 
self," or  prove  in  defence  against  a  claim  on  any  contract  his 
insanity,  or  imbecility,  or  aberration,  or  defect  of  understanding 
from  any  cause,  existing  at  the  time  the  contract  was  made.(w) 
The  general  reason  for  this  is,  that  there  can  be  no  contract  un- 
less there  be  a  meeting  of  minds  ;  and  there  can  be  no  meeting 
of  minds  if  the  one  party  has  no  mind  which  can  meet  the  mind 
of  the  other.  Possibly  this  defence,  to  be  effectual,  must  go  far 
enough  to  show  that  this  defect  of  mind  was  known  to  the  other 
contracting  party,  or  was  unknown  to  him  by  reason  of  his  own 
fault  and  negligence.     It  has  been  so  held  in  cases  of  executed 


{k)  Leonard  v.  Leonard,  14  Pick.  280. 

(/)  See  Gore  v.  Gibson,  13  M.  &  W.  623.  In  Bagster  v.  Earl  of  Portsmouth,  7 
DowL  &  II.  614,  2  C.  &  P.  178,  it  was  held,  that  a  hinatic  is  capable  of  contracting  for 
necessaries.  Therefore,  where  a  person  of  rank  ordered  carriages  suitable  to  his  con- 
dition, and  tlie  coachmaker  supplied  them  bona  Jide  and  without  fraud,  and  thev  were 
actually  used  by  the  party  :  h(4d,  that  an  action  would  lie  upon  the  contract,  notwith- 
standing an  inquisition  of  lunacy  finding  the  party  to  be  of  unsound  mind  at  the  time 
the  carriages  were  ordered.  La  Kue  v.  Gilkyson,  4  Penn.  State,  375,  is  to  the  same 
effect.     Anr"  see  Richardson  i'.  Strong,  13  Ired.  106. 

(m)  Mitchell  v  ffingman,  5  Pick.  431  ;  Gore  v.  Gibson,  13  M.  &  W.  623  ;  Alcock 
o.  Alcock,  3  Man.  &  G.  268.     See  contra,  Bvovm  v.  Jodrell,  3  C.  &  P.  30. 
13  * 


150  NOTES   A^T)   BILLS.  [CH.  V. 

contracts. (m)  But  it  may,  we  think,  be  well  doubted  whether 
any  instrument  or  contract  could  be  enforced  in  law,  if  one 
of  the  parties  was  distinctly  non  compos  mentis  wlien  it  was 
made.(o)  It  has  been  said  that  the  note  of  one  known  to 
the  payee  to  be  insane  .is  absolutely  void,  even  in  the  hands 
of  an  innocent  indorsee  ;  [p)  but  such  indorsee  must  cer- 
tainly have  his  remedy  against  the  indorser,  either  on  the  note 
or  independently. 

Sanity  is  to  be  presumed ;  the  burden  of  proof  being  on  him 
who  denies  it.{q)  But  to  defeat  a  promissory  note,  it  is  only 
necessary  to  prove  a  condition  of  mind  which  makes  self-protec- 
tion against  imposition  impossible. (r) 

An  inquisition  of  lunacy  is  conclusive  against  those  who  are 
parties  to  it.     But  it  is  said  that  it  may  be  rebutted  by  clear  evi- 


()()  Thus,  in  Bro\VTi  v.  Jodrell,  3  C  &  P.  30,  Moody  &  M.  105,  which  was  an  action 
for  work  and  labor,  and  goods  sold  and  delivered,  it  was  held  to  be  no  defence,  tliat  the 
defendant  was  of  unsound  mind,  unless  the  plaintiff  knew  of,  or  in  some  way  took 
advantage  of  his  incapacity,  in  order  to  impose  on  him.  So  in  Beals  v-  See,  10  Penn. 
State,  56,  it  was  held,  that  an  executed  contract  by  a  merchant  for  the  purchase  of  goods 
cannot  be  avoided  by  proof  of  insanity  at  the  time  of  the  purchase,  unless  there  has 
been  a  fraud  committed  on  him  by  the  vendor,  or  he  has  knowledge  of  his  condition. 
And  in  Molton  v.  Camroux,  4  Exch.  17,  it  was  held,  that  unsoundness  of  mind  will 
not  vacate  a  contract,  if  it  be  unknown  to  the  other  contracting  party,  and  no  advan- 
tage be  taken  of  the  lunatic,  especially  where  the  contract  is  executed  in  whole  or  in 
part,  so  tiiat  the  parties  cannot  be  restored  to  their  original  position.  Therefore,  where 
a  lunatic  purchased  certain  aniuiities  for  his  life,  of  a  society  which  at  the  time  Iiad  no 
knowledge  of  his  unsoundness  of  mind,  tiie  transaction  being  in  the  ordinary  course  of 
human  affairs,  and  fair  and  bona  Jide  on  tiie  part  of  the  society,  it  was  held,  in  tlie  Ex- 
chequer Chamber,  (affirming  the  judgment  of  the  Court  of  Exchequer,)  that,  after  the 
death  of  the  liuuxtic,  his  persomil  representatives  could  not  recover  back  the  premiums 
paid  for  the  annuities. 

(o)  In  Heaver  v.  Phelps,  1 1  Pick.  304,  in  trover  for  a  promissory  note,  ])ledged  totho 
defendant  by  the  plaintiff  wlien  the  latter  was  insane,  it  was  htld  not  to  be  a  legal  de- 
fence that  tlie  defendant,  at  the  time  when  he  took  the  pledge,  was  not  apjirised  of  the 
jilaintiff 's  being  insane,  and  had  no  reason  to  suspect  it,  and  did  not  ovcrreacii  him  nor 
))ractise  any  fraud  or  unfairness.  And  Wilde,  J.  said  :  "  The  defendant's  counsel  rely 
principally  on  a  distinction  between  contracts  executed,  and  those  which  arc  executory. 
But  if  this  distinction  were  material,  wc  do  not  perceive  how  it  is  made  to  appear  that 
the  contract  of  bailment  is  an  executed  contract,  for  if  the  note  was  pledged  to  secure 
the  jierfonnancc  of  an  executory  contract,  and  was  part  of  the  same  transaction,  it 
would  ratlier  be  considered  an  executory  contract.  But  wc  do  not  consider  the  distinc- 
tion at  ail  material.  It  i.s  well  settled  that  the  conveyances  of  a  non  compoa  a"c  roid- 
able,  and  may  be  avoided  by  the  writ  dam  fail  uon  compos  vicntis,  or  by  entry." 

{/i)   Sentance  i:  Poole,  3  C.  &  P.  1. 

(7)  Jackson  v.  Van  Dusen,  5  Johns.  I ■14  ;  Jackson  v.  King,  4  Cowen,  207. 

Ir]  Jithnson  u.  Ciiadwell,  8  Ilurnpli.  145 


CH.  v.]  ALIENS.  151 

deuce  of  sanity,  by  other  parties. (*')  Before  office  found,  the 
acts  of  a  lunatic  are  said  to  be  voidable  only ;  (t)  afterwards, 
void.(«)  But  we  should  have  some  doubt  whether  this  distinc- 
tion would  be  enforced  so  far  as  to  say  that  the  contract  of  a  lu- 
natic could  not  be  ratified  and  confirmed  by  him  after  his  sanity 
was  restored. 

It  is  quite  well  settled  that  the  maker  of  a  promissory  note, 
sued  by  an  indorsee,  will  be  allowed  to  plead  that  the  indorser 
was  a  lunatic  at  the  time  of  the  indorsement. (v) 

Drunkenness  is  a  species  of  insanity ;  but  the  law  is  not  quite 
clear  respecting  this  disability.  Perhaps  it  stands  thus :  One 
cannot  defend  by  proving  his  drunkenness,  unless  ho  can  show 
that  the  drunkenness  was  known  to  the  payee  and  taken  advan- 
tage of  by  him ;  or  that  it  was  complete,  and  suspended  all  use 
of  the  mind  at  the  time.{iv)  It  might  be  doubted,  however, 
whether  such  absolute  drunkenness  as  this  would  be  compatible 
with  the  physical  ability  of  writing  one's  name.  At  all  events, 
it  must  be  law  that  no  one  can  avail  himself  of  drunkenness  pur- 
posely caused  by  himself,  with  the  intention  of  rendering  con- 
tracts void  which  he  should  enter  into  in  that  state. 


SECTION    VII. 

ALIENS. 

There  is  nothing  to  prevent  an  alien,  merely  as  such,  from 
becoming   a   party  to  a   promissory   note  or  bill,  and  nothing 


(s)  Den  V.  Clark,  5  Halst.  217;  Kot^ers  v.  Walker,  6  Penn.  State,  371.  But  see, 
contia,  Leonard  v  Leonard,  14  Pick   280;  WadswortU  v.  Sharpsteen,  4  Scld.  388. 

(t)  Jackson  r.  Gumaer,  2  Cowcii,  .5.52. 

(w)  Pearl  v.  M'Dowell,  3  .7.  J.  Marsh.  658. 

(f)  Alcock  V.  Alcock,  3  Man.  &  G.  268  ;  Peaslee  v.  Robbins,  3  Met.  164  ;  Burke  v. 
Allen,  9  Post.  106. 

(w)  In  Pitt  V.  Smith,  3  Camp.  33,  it  was  held,  that  an  agreement  signed  by  a  person 
in  a  state  of  complete  intoxication  was  void.  In  Gore  v.  Gibson,  13  M.  &  W.  623,  to 
an  action  by  indorsee  against  indorser  of  a  bill  of  exchange,  the  defendant  ])leaded, 
that  wlien  he  indorsed  the  bill  he  was  so  intoxicated,  and  thereby  so  entirely  deprived 
.)f  sense,  understanding,  and  the  nse  of  his  reason,  as  to  be  unable  to  comprehend 
the  meaning,  nature,  or  effect  of  the  indorsement,  or  to  contract  thereby  ;  of  which  the 
plaintiff,  at  the  time  of  the  indorsement,  had  notice.  Held  to  be  a  good  answer  to  the 
action.     And  see  Jenners  v.  Howard,  6  Blackf.  240  ;  Berkley  v.  Cannon,  4  Rich.  136 


1-32  NOTES   AND   BILLS.  [CH.  V 

111  his  alienage  to  affect  his  rights  or  obligations.  If,  however, 
he  is  an  alien  enemy,  no  contract  entered  into  with  him  can  be 
enforced  in  the  courts  of  this  country.  He  has  no  standing 
there  to  maintain  his  rights  :  and  a  citizen  who  enters  into  a 
contract  with  an  enemy  would  be  regarded  as  violating  the 
law,  and  could  not  have  its  aid  in  carrying  the  contract  into 
effect,  (x-) 

This  has  been  carried  so  far  in  England,  that  a  bill  drawn 
by  an  alien  enemy  on  an  English  subject,  then  in  England, 
and  indorsed  to  an  English  subject  abroad,  was  not  permitted 
to  be  enforced  In  the  English  courts  even  after  the  restoration 
of  peace. (//)  The  same  principle  would  avoid  all  contracts  for 
tiic  purpose  of  remitting  funds  to  an  enemy's  country,  by  bill 
or  otherwise. (2:)  The  only  exceptions  to  this  rule  would  seem 
to  be  in  the  case  of  bills  or  notes  for  ransom  of  proi)erty  or 
persons ;  (a)  or  for  obtaining  necessaries  while  a  prisoner ;  (b) 
or  for  purposes  connected  with  a  voyage  by  cartel  or  license, 
in  which  cases  there  seems  to  be  a  kind  of  partial  peace,  or 
at  least  a  suspension  of  the  incidents  of  war.(6*)  Nor  does  it 
seem  to  be  a  sufficient  objection  to  an  action  on  a  bill  so 
protected,  that  it  is  brought,  in  part,  in  trust  for  an  alien  en- 
emy.{(/) 


(.r)  Griswold  v.  Waddington,  16  Johns.  438. 

{y)   Willison  i.\  Pattcson,  7  Taunt.  439. 

(z)  Griswold  v.  Waddin<,non,  16  Johns.  438  ;  Hoare  v.  Allen,  2  Dallas,  102.  But  in 
United  States  v.  Barker,  1  Paine,  156,  it  was  held,  that  a  citizen  of  the  United  States 
inii^ht  lawfully,  during  a  war  with  a  foreijrn  country,  draw  a  bill  on  one  of  its  subjects  ; 
such  an  act  not  leading  to  any  injunous  intercourse,  nor  amounting  to  a  trading  with 
the  enemy. 

((()  Kicord  r.  Bettenham,  3  Burr.  1734;  Cornu  v.  Blackburne,  2  Doug.  641  ;  An- 
thon  V.  Fisher,  2  Doug.  649,  note ;  3  id.  166. 

(/;)  Aiitoine  v.  Morshcad,  6  Taunt.  237.  But  see  Duliammcl  v.  Pickering,  2  Stark. 
90. 

{/■)  Thus,  in  Suckley  i;.  Furse,  1.5  Johns.  338,  wlicrc  a  bill  of  exchange  was  drawn 
in  this  country,  upon  a  person  in  Great  Britain,  during  the  late  war  with  that  country, 
f<»r  supplies  furnished  by  the  payee  to  a  British  vessel  authorized  by  act  of  Congress  to 
sail  from  this  country  to  an  enemy's  port,  which  was  sold  by  the  payee  to  the  plaintiff, 
who  remitted  it  to  Great  Britain  for  collection  ;  it  was  Iwld,  that  the  remittance  of 
the  bill  WM'j  within  the  protection  afforded  to  the  original  transaction,  and  was  not 
illegal. 

[d)  Daubuz  v.  Morshcad,  6  Taunt.  332. 


CH.  v.]  BANKRUPTS.  153 

SECTION    VIII. 

BANKUm^TS. 

We  have,  in  this  country,  no  general  bankrupt  law  ;  and 
the  insolvent  laws  of  the  several  States  usually  provide  for 
most  of  the  questions  which  can  occur  in  relation  to  negotia- 
ble pa[)er.  In  general,  however,  it  may  be  said  that  all  the 
property,  chattels,  or  choses  in  action,  and  all  the  interest  in 
any  property  belonging  to  the  bankrupt,  passes  to  his  assignees. 
He  has,  therefore,  no  property  left,  and  no  power  of  disposition 
or  control.  He  cannot  sue,  or  indorse, (e)  or  assign.  In  respect 
to  a  bill  or  note  received  by  a  bankrupt  after  his  bankruptcy, 
it  is  iield,  in  England,  that  it  does  not  vest  absolutely  in  the 
assignees,  although  they  have  a  right  to  claim  it;  bnt,  in  the 
absence  of  any  claim  by  them,  the  title  of  the  bankrupt  is  good 
as   against  all   other   p3rsons.(/")     And   if   the   property   in   the 


(e)  In  Ashurst  v.  Royal  Bank  of  Australia,  Q.  B.  185G,  37  En<:.  L  &  Va\.  19'>,  it  was 
held  that  a  bankrupt  could  convey  no  title  to  a  note  by  inilorsini;  it  after  maturity,  but 
it  was  said  that  he  could  before.     Sec  also  Smith  e.  De  Wilts,  6  Dowi.  &  K.  120. 

{/)  Kitchen  v.  Bartsch,  7  East,  S3.  In  this  case  it  was  held  to  be  a  good  plea  to  an 
action  on  a  promissory  note,  and  for  money  lent,  that  the  plaintiff  was  an  uncertificated 
bankrupt,  and  that  his  assignees  required  the  defendant  to  pa_v  to  them  the  money 
claimed  by  the  plaintiff;  and  it  is  not  a  good  replication  that  the  causes  of  action  ac- 
crued after  the  plaintiff  l)ecame  bankrupt,  and  that  the  defendant  treated  with  the  plain- 
tiff as  a  person  capable  of  receiving  credit  in  those  behalves,  and  that  the  commissioners 
had  made  no  new  assignment  of  the  said  notes  and  money  ;  for  the  general  assignment 
of  the  commissioners  passes  to  the  assignees  of  the  bankrupt  all  liis  after  acquired  as 
well  as  present  personal  property  and  debts.  In  Drayton  v.  Dale,  2  B  &  C.  293,  which 
was  assumi)sit  by  the  indorsee  against  the  maker  of  a  promissory  note  payable  to  A  or 
his  order,  the  defendant  pleaded  that  A  became  bankrupt,  and  that  his  property  was 
duly  assigned  to  assignees,  whereby  the  interest,  title,  and  right  to  indorse  the  promis- 
sory note  before  the  lime  of  indorsement  became  vested  iu  the  assignees,  wherein'  the 
indorsement  by  A  wai  void,  and  created  no  rights  in  the  plaintiffs  to  sue.  Repli- 
cation, that  the  indorsement  was  made  witii  the  consent  of  the  assignees.  Rejoinder 
taking  issue  upon  that  fact.  A  verdict  having  been  found  for  the  defendant  on  tliis 
issue,  it  was  held,  that  the  plaintiff  was  entitled  to  judgment,  non  obstante  veredicto. 
First,  liecause  the  defendant,  who  had  made  the  note  payable  to  A  or  his  order,  was 
estopped  from  saying  that  A  was  not  competent  to  make  an  order.  Secondly,  because 
the  property  acquired  by  a  bankrupt  subsequently  to  his  bankruptcy  does  not  abso- 
lutely vest  in  the  assignees,  although  they  have  a  right  to  claim  it ;  but  if  they 
do  not  make  any  claim,  the  bankrupt  has  a  right  to  such  property  against  all  other 
persons. 


154  NOTES   AND   BILLS.  [CH.  V 

bill  had  already  passed  from  the  bankrupt  before  liis  bankrupt- 
cy, or  was  so  intended,  and  indorsement  ought  to  be  made,  the 
bankrupt  may  indorse  it,  or  the  assignees  may  be  compelled  to 
indorse,  (o") 

SECTION    IX. 

OF    EXECUTORS    AND    ADMINISTRATORS. 

In  general  tliey  have  all  the  rights  and  remedies  of  the 
deceased,  although  not  named  in  the  contracts  or  instruments 
from  which  these  rights  arise  ;  and  lie  under  all  the  obligations 
of  the  deceased,  so  far  as  his  assets  suffice.  All,  however,  with 
the  important  exception  of  those  contracts,  whether  express  or 
implied,  which  are  so  entirely  personal  to  the  deceased,  that 
no  one  can  fill  his  place  or  become  his  substitute  ;  so  that  all 
the  rights  and  obligations  arising  under  such  contracts  of  course 
die  with  him. 

If  a  negotiable  note  is  indorsed,  or  if  a  non-negotiable  note  is 
assigned  for  value,  to  a  dead  man,  whoso  death  is  not  known, 
it  becomes  the  property  of  his  executor  or  administrator,  in 
the  same  manner  as  if  he  had  died  after  the  transfer. (/*)  And 
this  would  probably  be  the  case,  if  this  transfer  were  made  in 
good  faith  with  a  knowledge  of  the  death  ;  as  it  could  be  made 
with  no  other  intention  than  to  place  the  note  among  his  as- 
sets. 

Only  the  executors  or  administrators,  and  not  the  heirs  or 
next  of  kin  of  ])ersons  deceased,  can  claim  possession  of  his 
bills  and  notes,  or  demand  payment,  or  put  them  in  suit.(i) 
In  suing  u[)on  them,  they  must  set  out  distinctly  the  facts 
which  constitute  their  rei)rcsentative  character,  because  this 
is  a  part  of  their  title.  It  has  been  held  not  sufficient  to 
describe  themselves  as  executors,  nor  even  to  aver  that  they 
were  duly  appfjintcd  ;  but  they  are  required  to  set  out  tiie  pro- 
ceedings, so  that  the  court  may  see  that  the  appointment  was 
legal.  (» 

((/)  Smiili  V.  Pi(kcrin<,',  Peakc,  50 ;  Ex  ptirtc  Mowbray,  1  Jac.  &  W.  428. 
(/<)   Murray  v.  East  India  Co.,  r,  IJ.  &  Aid.  204. 
(i)  Morse  V.  Clayton,  1.3  Smcdcs  &  M.  373. 
ij)  Beach  V.  King,  17  Wend.  197. 


CII.  v.]  EXECUTORS   AND   ADMINISTRATORS.  155 

It  is  otherwise,  if  they  receive  a  note  payable  to  themselves, 
though  for  a  debt  due  to  the  estate,  and  though  payable  to 
them  as  executors.  For  in  such  case  their  representative  char- 
acter constitutes  no  part  of  their  title.  The  note  never  be- 
longed to  their  testator,  but  vested  in  them  originally.  And 
if  a  bill  or  note,  belonging  to  the  testator  at  the  time  of  his 
decease,  is  payable  to  bearer,  they  need  not  in  suing  upon  it 
malce  title  through  liim  ;  they  may  sue  as  bearers  simply.  The 
same  distinction  is  applicable  to  guardians,  receivers,  assignees 
in  bankruptcy,  and  trustees  of  every  description. (^') 

It  has  been  a  vexed  question,  whether  a  note  payable  to 
"A,  as  executor,'"  and  given  for  a  debt  due  to  the  estate,  will 
be  regarded  as  assets.  It  was  once  held  that  it  would  not ; 
and  therefore  that  a  count  upon  such  a  note  could  not  be 
joined  with  counts  upon  promises  made  to  the  testator  in 
his  lifetime. (/)  But  this  doctrine  has  since  been  overruled  ; 
and  it  is  now  well  settled  tliat  such  a  note  will  be  assets,  at 
least  at  the  election  of  the  executor. (m)  Therefore,  if  he  de- 
clares upon  it  as  a  note  payable  to  him  as  executor,  and  lays 
the  promise  as  made  to  him  in  his  representative  capacity, 
he  may  join  counts  upon  promises  to  his  testator  in  his  life- 
time, (li) 

(k)  Gillet  V.  Frtirchild,  4  Dcnio,  80  ;  White  v.  Joy,  3  Kern.  83. 

(/)  Betts  V.  Mitchell,  10  Mod.  316.     And  see,  per  Chambre,  J.,  in  Hosier  v.  Arundell, 

3  B.  &r.  11. 

{m)  See  Henshall  v.  Roberts,  5  East,  150;  Hemphill  v.  Hamilton,  6  Eng.  425; 
Baker  v.  Baker,  4  Bibb,  346. 

(n)  King  v.  Thorn,  1  T.  R.  487.  In  Partridge  v.  Court,  5  Price,  412,  affirmed  on 
error  in  7  l^rice,  591,  it  was  held,  that  counts  on  promises  made  to  an  intestate  may  bo 
joined  in  a  declaration  by  an  administrator,  in  an  action  of  assumpsit  on  such  promises, 
with  counts  on  promissory  notes  given  to  the  administrator  since  the  death  of  the  intes- 
tate as  administrator,  because  the  amount  when  recovered  will  be  assets  in  the  hands 
of  the  administrator.  Graham,  B.  said:  "Wherever  the  money  when  recovered  shall 
be  assets,  counts  in  each  character  may  be  joined  ;  and  that  is  a  fair  and  sound  criterion, 
and  one  which  is  sufficient  to  prevent  all  ambiguity  and  doubt ;  it  ought,  therefore,  to 
be  adopted  as  a  never-failing  rule.  Then  we  should  look  to  this  record  with  a  view  to 
see  whether  the  money  which  is  sought  to  be  recovered  would  be  assets  in  the  hands  of 
the  administratrix,  and  in  my  opinion  the  judgment  for  the  plaintiif  would  be  conclu- 
sive, if  produced,  to  show  that  assets  had  come  to  her  hands,  and  might  be  used  for  that 
purpose."  Wood,  B. :  "  The  objection  to  tliis  declaration  is,  that  it  contains  several 
:oun:s  which  are  distinct,  and  cannot  be  joined,  some  lieing  framed  on  demands  in  the 
plaintifTs  representative  character,  and  others  on  demands  which  should  be  asserted  by 
hi'r  personally,  and  no  doubt  if  that  were  so,  the  declaration  would  be  bad  ;  but  I  am 
of  opinion  that  all  these  counts  are  on  demands  arising  to  her  in  her  representative 


156  NOIES   AND   BILLS.  [CH.  V. 

Upon  the  same  principle,  if  an  administrator,  who  has  re- 
ceived such  a  note,  dies  before  it  is  paid,  it  goes  properly  with 
the  other  assets  into  the  hands  of  the  administrator  de  bonis  non, 
and  he  may  sue  upon  it,  and  demand  and  receive  payment. (o) 


character,  and  not  in  person.  The  true  criterion  of  that  is  certainly  what  has  been 
ah'eady  stated,  that  where  the  money,  if  recovered,  would  be  assets,  the  causes  of  action 
may  be  joined,  and  in  this  case  I  take  it  that  the  money,  when  recovered,  may  be  clearly 

80  considered The  note  is  given  to  the  administratrix,  as  administratrix,  and 

that  is  not  merely,  as  has  been  argued,  a  description  of  the  person,  it  is  a  description  of 
character,  and  of  the  character  in  which  Ihe  debt  is  to  be  paid  to  her."  See  Henshall 
V.  Roberts,  5  East,  1.50  ;  per  Parke,  B.,  in  F»ath  v.  Chilton,  12  M.  &  W.  G.37  ;  per  N'lson, 
C.  J.,  in  Bogert  v.  Hertell,  4  Hill,  .503,  tt  seq.  In  1  Williams  on  Executors,  4th  ed.,  751, 
after  stating  the  cases,  it  is  said :  "  The  principle  on  which  these  cases  were  decided  has 
not  been  settled  without  conflict.  Several  old  cases  may  be  found,  in  which  it  was  con- 
sidered that  the  contracts  made  with  an  executor  or  administrator  were  personal  to  him, 
and  that  he  must  sue  for  them  in  his  own  right,  and  not  in  his  re])resentative  capacity ; 
and  particularly  in  the  instance  of  negotiable  instruments,  it  was  conceived,  until  very 
modern  times,  that  if  an  executor  took  a  bill  or  note  from  a  debtor  to  the  estate  of  his 
testator,  a  new  debt  was  thereby  created,  which  must  be  declared  on  as  such.  How- 
ever, the  rule  may  now  be  regarded  as  firmly  established  by  the  more  recent  cases,  that 
wherever  the  money  recovered  will  be  assets,  the  executor  may  sue  for  it  and  declare 
in  his  representative  character."  And  see  Sheets  v.  Pabody,  6  Biackf  120.  But  see 
TurnbuU  v.  Freret,  17  Mart.  La.  703;  Oilman  v.  Horseley,  17  Mart.  La.  661  ;  Urqn- 
hart  V.  Taylor,  .5  Mart.  La.  200  ;  Clampitt  v.  Newport,  8  La.  Ann.  124. 

(o)  Thus,  in  Catherwood  r.  Chabaud,  1  B.  &  C.  1.50,  where  a  hill  of  exchange  was 
indorsed  generally,  but  delivered  to  S.  C,  as  administratrix  of  J.  C,  for  a  debt  due  to 
the  intestate,  and  S.  C.  died  intestate  after  the  bill  became  due,  and  before  it  was  paid, 
it  was  laid,  that  the  administrators  de  bonis  von  of  J.  C.  might  sue  upon  the  bill. 
Abbott,  C.  J.  said  :  "  It  was  dearly  established  by  the  evidence  that  tlic  bill  in  question 
was  given  to  S.  C,  as  the  administratrix  of  J.  C,  for  money  due  to  her  intestate ;  she 
took  it  as  assets,  and  if  she  had  received  the  money,  that  must  undoulitcdly  have  been 
accounted  for  to  his  estate.  The  money  not  having  been  received  in  her  lifetime,  the 
bill  remained  as  a  part  of  J.  C.'s  estate,  and  the  right  to  it  devolved  upon  the  persons  who 
afterwards  became  his  representatives.  This  case  differs  widely  from  Barker  v.  Talcot, 
1  Vern.  473,  for  there  the  debtor  had  actually  paid  the  executor  of  the  administrator; 
now  such  a  payment  would,  in  etpiity,  and  might,  i)erhai)s,  in  law  also,  be  a  sufficient 
answer  to  any  action  afterwards  brought  to  enforce  payment  of  the  same  debt  over 
again.  Here  no  payment  has  been  made  by  the  debtor,  who  therefore  cannot  he  dam- 
nified by  this  action.  It  has  been  decided  in  a  variety  of  modern  cases,  that  an  admin- 
istrator may  sue  as  such  u[)on  a  promise  made  to  him  in  his  representative  character; 
and  that  j)rinciplc  governs  my  opinion  upon  the  present  case  ;  for  where  the  cause  of 
action  is  such  that  the  first  administrator  may  sue  in  his  representative  character,  the 
right  of  action  devolves  upon  the  ailministrator  de.  bonis  voii  of  the  intestate."  Baj/ley, 
J. :  "  It  was  decided  in  the  case  of  King  v.  Thorn,  1  T.  B.  487,  that  if  a  hill  be  indorsed 
to  A  and  B  as  executors,  they  may  declare  as  such  in  an  action  against  the  acceptor. 
In  Cowell  i:  Watts,  6  East,  40.5,  it  was  luld,  that  an  administrator  may  sue  in  his  rep- 
resentative character  upon  promises  made  to  himself,  where  the  money  will  be  assets 
when  recovered.  Now,  if  tlic  administrator  dies  intestate,  without  having  sued  upon 
«uch  a  promise,  the  administrator  de  bonis  non  may  sustain  an  action  upon  it ;  for  he 


CH.  v.]  EXECUTORS   AND   ADMIXISTRATORS.  157 

But  payment  to  the  administrator  of  the  deceased  has  been  held, 
ill  the  English  Court  of  Ciiancery,  to  discharge  the  payer; (/?) 
and  in  a  recent  case  this  decision  is  so  commented  upon  as  to  im- 
ply that  tlie  payment  might  be  held  good  at  hi\v.{q)  It  is  also 
intimated,  in  the  same  case,  that  there  may  be  cases  where  the 
representative  of  the  administrator  might  and  ought  to  sue  ;  as 
if  the  administrator  had  made  himself  debtor  to  the  intestate's 
estate  for  the  amount  of  the  note.(/') 

An  executor  or  administrator  may  indorse  a  negotial)le  note 
of  the  deceased  ;  and  his  assignment  of  a  non-negotiable  in- 
strument  passes   the   property   to    the   assignee. (s)      But   such 


succeeds  to  all  the  legal  rights  which  belonged  to  the  administrator  in  his  representative 
capacity.  Here,  S.  C,  the  administratrix  of  J.  C,  might  have  sued  as  such  upon  the 
bill  in  question.  This  action  was,  therefore,  properly  brought  by  the  admuiistrators  de 
bonis  non.  By  this  mode  of  proceeding,  the  money  recovered  is  immediately  apjjlicable 
to  the  right  fund,  as  assets  of  the  first  intestate ;  whereas,  if  the  action  had  been  brought 
by  the  personal  representative  of  the  administratrix  of  J.  C,  it  would,  in  the  first  in- 
stance, have  become  a  part  of  her  estate,  and  must  afterwai'ds  have  been  transferred 
from  that  to  the  estate  of  J.  C,  the  first  intestate."  Holroyd,  J. :  "I  am  of  the  same 
opinion.  The  decisions  in  the  old  cases  proceeded  upon  the  principle  that  contracts 
made  with  an  administrator  were  personal  to  him,  and  that  he  must  sue  upon  them  in 
his  own  right,  and  not  in  his  representative  capacity.  That  principle  has  since  been 
altered,  and  it  has  been  ruled  in  several  modern  cases,  that  upon  such  contracts  an 
administrator  may  sue  in  his  representative  character.  The  older  cases  have,  therefore, 
received  a  qualification,  and  are  not  now  to  be  considered  as  law  to  their  full  extent." 
Best,  J.  :  "  In  refusing  this  rule  it  is  not  necessary  to  decide  that  the  administrator  of 
the  administratrix  S.  C.  could  not  have  sued ;  it  is  sufficient  to  say,  that  the  adminis- 
ti'ator  de  bonis  non  might  sue ;  and  this  observation  may  serve  to  reconcile  the  various 
cases  which  have  been  referred  to.  An  action  by  the  administrator  de  bonis  non  was 
certainly  the  most  proper,  tliat  being  the  shortest  and  most  convenient  mode  of  bring- 
ing the  money  recovered  into  the  funds  of  the  original  intestate."  Abbott,  C.  J. : 
"  There  is  much  weight  in  the  distinction  which  has  been  taken  by  my  brother  Best. 
There  may  be  cases  where  the  administrator  of  an  administrator  might  and  ought  to 
sue,  namely,  if  the  first  administrator  had  made  himself  debtor  to  the  intestate's  estate 
for  the  amount  of  a  bill  received  in  payment  of  a  debt  due  to  that  estate."  And  see 
Sheets  v.  Pabody,  6  Blackf.  120. 

(p)  Barker  i'.  Talcot,  1  Vcrn.  473. 

(q)  Cathenvood  v.  Chabaud,  1  B.  &  C.  1.50. 

(r)  Catherwood  v.  Chabaud,  supra.  In  Ri.x  v.  Nevins,  26  Vt.  .384,  the  plaintiff,  as 
administrator  of  the  estate  of  R.,  commenced  a  suit  upon  certain  notes  which  R.,  in 
his  lifetime,  had  taken  of  the  defendant  as  administrator  of  the  estate  of  L.  (of  wliich 
estate  the  plaintiff  was  also  administrator  de  bonis  non),  and  obtained  judgment  against 
the  defendant  on  the  same.  Held,  that  the  plaintiff,  having  thus  treated  the  claim 
against  the  defendant  as  assets,  and  as  the  projjerty  of  the  estate  of  R ,  the  same  was 
jubjeet  to  every  legal  and  equitable  set-off  which  the  defendant  had  against  R.  or  his 
estate. 

(s)  Rawlinson  v.  Stone,  3  Wilson,  1.     This  was  an  action  upon  a  promissory  note, 

VCL.  1.  14 


158  NOTES   AND    BILLS.  [CH.  V. 

assignment  for  the  private  debt  of  the  executor  or  administrator 
is  a  fraud  on  the  estate  of  the  deceased,  and  passes  no  property 
to  an  assignee  who  has  notice  or  knowledge,  even  if  he  paid 
value.  (^) 

If  there  be  several  executors  or  administrators,  the  bills  and 
notes  of  the  deceased  may  be  indorsed  by  either  one  of  them. 
For  they  are  esteemed  in  law  but  as  one  person  ;  and  the  acts  of 
one  of  them  relathig  to  the  sale  and  transfer  of  the  testator's 
effects  are  the  acts  of  all.(ii)  Whether  the  same  rule  will  apply 
to  notes  taken  by  them  for  debts  due  to  the  estate,  has  been  con- 


payable  to  A  or  order,  and  indorsed  by  the  administratrix  of  A.  It  was  objected  that  the 
indorsement  was  not  valid  so  as  to  give  the  indorsee  an  action  in  his  own  name.  But  the 
objection  was  overruled,  "because,"  the  reporter  adds,  "it  is  well  known  to  be  the  con- 
stant practice  and  usage  among  merchants  for  executors  and  administrators  to  indorse 
and  negotiate  both  promissory  notes  and  bills  of  exchange  ;  and  the  courts  of  justice 
will  always  endeavor  to  adapt  the  rules  of  law  to  the  usage  and  course  of  trade,  ad  ea 
qua  frequent  ins  acdd  ant  jura  ndaptantur  ;  and  the  courts  of  law  are  warranted  in  this  by 
the  words  of  the  statute  of  Anne,  which  says,  that  promissory  notes  payable  to  any 
person  or  persons,  his,  her,  or  their  order,  shall  be  assignable  or  indorsable  over  in  the 
same  manner  as  inland  bills  of  exchange  arc  or  may  be,  according  to  the  custom  of 
merchants.  The  ecfuitablc  interest  in  the  note  is  converted  into  a  legal  interest,  and 
the  whole  interest  is  vested  in  the  administrator,  who,  before  the  statute,  might  liave 
assigned  his  equitable  interest,  and  since  the  statute,  may  now  assign  his  legal  interest." 
Mr.  Justice  Denison  further  said :  ''  That  if  it  had  appeared  to  the  court  u])on  a  special 
verdict  that  there  was  no  such  custom  among  merchants  as  for  administrators  to  indorse 
or  a'^sign  bills  of  exchange,  it  would  have  been  a  very  different  case  from  the  present ; 
but  that  no  such  tiling  appeared,  and  in  truth,  that  the  custom  is  for  administrators  to 
indorse  and  assign  bills ;  that  he  previously  had  some  notice  of  this  case  coming  before 
the  court,  and  therefore  had  inquired  touching  the  usage  among  merciiants,  and  been 
well  informed  that  it  was  the  constant  usage  amongst  thorn  fur  administrators  to  indorse 
and  assign  over  bills  of  exchange  made  p.ayable  to  their  intestates  or  order."  Sec  also, 
Watkins  v.  Maule.  2  Jac.  &  W.  2.37,  243 ;  S/mw,  C.  J.,  in  Kand  v.  Hubbard,  4  Met. 
2.52,  2.58;  Owen  v.  Moody,  29  Missis.  82;  Makepeace  v.  Moore,  5  Oilman,  474. 

(/)  Makepe.ice  v.  Moore,  5  Oilman.  474  ;  Miller  v.  Helm,  2  Smcdes  &  M.  687  ;  Scott 
V.  Scarlcs,  7  Smcdes  &  M.  498  ;  Miller  v.  Williamson,  5  Md.  219. 

((/)  Dwight  V.  NcwcU,  I. 5  111.  33.3;  Mosely  v.  Oraydon,  4  Strob.  7;  Wheeler  v. 
AVheeler,  9  Cowen,  34.  In  Shep.  Touch.  484,  it  is  said  :  "  All  the  executors,  where 
there  be  more  than  one,  be  they  never  so  many  in  the  eye  of  the  law,  are  but  as  one 
man  ;  in  which  respect  the  law  doth  esteem  most  acts  done  by  or  to  any  one  of  them, 
as  acts  done  l)y  or  to  all  of  them.  And,  therefore,  the  possession  of  one  of  tiiem  of 
the  goods  and  chattels  of  the  deceased  is  esteemed  the  jiossession  of  them  all ;  pay- 
ment of  di'bts  by  or  to  one  of  them  is  esteemed  payment  by  or  to  them  all ;  ihe  sale  or 
gift  of  one  of  them  of  the  goods  and  ciuittels  of  the  deceased,  the  sale  and  gift  of  them 
all ;  a  release  made  by  or  to  one  of  them  is  a  release  made  by  or  to  them  all  ;  and  the 
assent  of  one  of  them  to  a  legacy,  the  as.sent  of  them  all.  And,  therefore,  if  there  be 
two  executors,  and  one  of  them  deliver  up  the  obligation  to  the  debtor  whereby  he  is 
bound,  the  other  executor  shall  not  recover  it  in  a  detinue." 


CH.  v.]  EXECUTORS   AND    ADMINISTPwATORS.  159 

sidered  doubtful. (i')  It  would  scorn  to  depend  u})on  the  question 
already  noticed,  namely,  whether  such  notes  arc  to  Ijc  considered 
as  assets.  And  it  being  now  settled  that  they  are,  it  seems  tliat 
they  may  be  indorsed  as  eiTfcctually  by  one  executor  as  by  a\\.{iv) 
A  delivery  without  indorsement  by  an  executor  or  adminis- 
trator does  not  pass  the  legal  title,  except  in  the  case  of  paper 
transferable  by  delivery.  And  if  the  deceased  indorsed  the  note 
in  his  lifetime,  but  did  not  deliver  it,  it  has  been  held  that  a  de- 
livery by  tlic  executor  will  not  complete  the  transfer.  An  in- 
dorsement without  delivery  will  no  more  transfer  the  legal  title, 
than  delivery  without  indorsement.  In  the  case  supposed,  there- 
fore, the  legal  title  to  the  note  would  remain  in  the  payee  at  the 
time  of  his  death,  and  would  then  pass  to  his  executor,  as  in  the 
case  of  other  personal  estate  ;  and  that  title  could  be  transferred 
only  by  the  indorsement  and  delivery  of  the  executor,  because 
there  is  no  other  legal  mode  by  which  a  transfer  of  a  bill  or  note 
payable  to  order  can  be  made. (2;) 


(v)  In  Smith  v.  Whiting',  9  Mass.  334,  it  was  held,  that  one  of  two  executors  could 
not  assijjn  a  negotiable  promissory  note,  made  to  them  as  executors,  for  a  debt  due  to 
their  testator.  The  court  said :  "  Tlie  question  is,  whether  one  of  two  executors  is 
competent  to  transfer  by  indorsement  a  negotiable  promissory  note  made  to  the  two  in 
their  character  of  executors.  The  promisees,  not  being  copartners,  had  each  but  a 
moiety.  One,  therefore,  could  not  assign  the  whole.  Nor  was  it  competent  for  him  to 
assign  his  moiety."  And  see  Sanders  v.  Blain,  6  J.  J.  ]\Iarsh.  446  ;  Eegina  v.  Winter- 
bottom,  2  Car.  &  K.  37,  1  Den.  C.  C.  41  ;  Byles  on  Bills,  p.  40,  note;?,  p.  44,  note  u. 

(lo)  Bogert  v.  Hertell,  4  Hill,  492. 

(x)  Thus,  in  Bromage  v.  Lloyd,  1  Exch.  32,  H.  indorsed  a  promissory  note,  but  did 
not  deliver  it.  After  the  death  of  H.,  his  executrix  delivered  the  note  to  the  plaintiff. 
Held,  that  the  plaintiff  had  no  title  to  sue  on  the  note.  Pollock,  C.  B.  said  :  "  This  is 
an  action  on  a  promissory  note,  upon  which  a  party  has  written  his  name,  and  after  his 
death  his  executrix  delivers  the  note  to  the  plaintitl's  without  indorsing  it ;  so  that  there 
is  a  writing  of  his  name  by  the  deceased,  and  a  delivery  by  his  executrix.  Those  acts 
will  not  constitute  an  indorsement  of  the  note;  the  person  to  whom  it  is  so  delivered 
has  no  right  to  sue  upon  it."  Alderson,  B. :  "  The  promissory  note  was  made  payable 
to  the  testator  'or  order';  that  means  order  in  writing.  The  testator  has  written  his 
name  upon  the  note,  but  has  given  no  order ;  the  executrix  has  given  an  order,  but  not 
in  writing.  The  two  acts  being  bad,  do  not  constitute  one  good  act."  Rolfe,  B. :  "  The 
word  '  transfer '  means  indorsement  and  delivery."  So  in  Clark  v.  Sigourney,  17  Conn. 
511,  A  gave  his  note  to  B,  pay.able  to  B  or  order  on  a  certain  future  day.  This  note  B 
retained  in  his  hands,  doing  nothing  else  with  or  in  relation  to  it,  until  iiis  death,  which 
was  long  after  it  fell  due.  It  afterwards  came  into  the  hands  of  C,  the  widow  and 
executrix  of  B,  with  the  name  of  B  written  in  blank  by  him  on  the  back  of  it;  and  C 
delivered  it,  in  the  state  in  which  she  found  it,  to  D,  for  a  valuable  consideration.  In 
an  action  brought  by  D,  as  indorsee  of  the  note,  against  A,  as  the  maker,  alleging  that 
B,  by  his  indorsement  in  writing  under  his  hand  ordered  the  contents  thereof  to  be  paid 


IGO  NOTES   AND   BILLS.  [CH.  V. 

If  the  deceased  made  a  valid  bargain  concerning  a  note  or  bill, 
and  indorsement  and  delivery  are  necessary  to  carry  this  into 
effect,  the  executor  or  administrator  not  only  may  indorse  and 
deliver  the  note  or  bill,  but  equity  will  compel  him  to  do  so.  A 
fortiori,  if  the  deceased  delivered  the  note  for  a  valuable  consid- 
eration, without  indorsement,  as  he  thereby  created  a  perfect 
equitable  (though  not  a  legal)  title  ;  the  holder,  having  an  equi- 
table right,  may  in  equity  compel  the  executor  to  give  a  formal 
transfer,  (yy) 

In  general,  it  is  within  the  power  and  duty  of  executors  or 
administrators  to  present  for  acceptance  or  for  payment,  and  give 
notice  of  non-acceptance  or  non-payment,  and  make  protest,  in 
the  same  manner  and  for  the  same  causes  as  the  deceased  could 
and  should  have  done.  And  all  presentments  and  demands,  and 
all  notices,  may  and  should  be  made  against  or  given  to  them  in 
like  manner  as  against  or  to  the  deceased.  These  things  will  be 
stated  more  fully  in  the  chapters  on  Presentment,  Demand,  and 
Notice.  There  is,  however,  a  difference  between  the  origin  and 
commencement  of  the  powers  and  duties  of  an  executor,  and 


to  D,  it  was  held  (  Williams,  C.  J.  and  Waite,  J.  dissenting),  —  1.  That  as  D  claimed 
title  to  the  note,  by  an  immediate  indorsement  of  it  to  him  by  B,  it  was  necessary  for 
D,  in  order  to  sustain  that  title,  to  prove  such  an  indorsement;  2.  That  the  word 
indorsement,  as  applicable  to  negotiable  paper,  imports  a  transfer  of  the  legal  title  to  tho 
instrument,  by  contract;  3.  That  the  consummation  of  this  contract  must  be  .shown, 
by  a  delivery  by  the  party  making  the  transfer  to  the  party  to  whom  it  is  made,  and  an 
acceptance  by  tiie  latter,  the  mere  act  of  the  payee's  writing  his  name  on  the  back  of 
the  instrument  not  being  sufficient  for  this  purpose ;  4.  That  the  legal  title  of  the  note 
being  in  IJ  at  the  time  of  his  death,  it  then  vested  in  C,  his  executrix,  and  could  bo 
transferred  only  i)y  her  indorsement;  5.  That  C,  as  executrix,  or  otherwise,  had  no 
authority  to  deliver  the  note  as  a  note  indorsed  by  B  ;  6.  That  1),  consequently,  had 
acquired  no  legal  title;  7.  That  as  the  note  came  into  D's  hands  after  it  ])ecainc  duo, 
it  was  subject  to  the  defence  of  want  of  legal  title  in  him.  So  in  Clark  v.  Boyd,  2 
Oliio,  ."iG,  it  was  Md,  that  an  assignment  indorsed  upon  a  note,  and  the  note  retained 
by  the  assignor  until  his  death,  vests  no  interest  in  the  assignee.  The  court  said  : 
"  Tiie  assignment  made  by  the  assignor,  while  the  note  remained  in  his  possession, 
and  where  no  contract  of  sale  wiis  proved,  was  a  mere  nullity.  It  was  in  his  own 
power,  and  couhl  at  any  time  be  legally  erased.  It  gave  no  interest  or  title  to  tho 
assignee,  and  wiicn  Pierce  died  lie  was  the  absolute  owner  of  the  note,  notwitiistanding 
the  assignment.  The  right  vested  by  his  death  in  the  executors,  and  could  only  bo 
assigned  by  them.  The  [ilaintiffacciuired  no  more  right  i)y  a  delivery  from  the  hands 
of  tiie  executors  tlian  he  could  have  acquired  had  tlicy  delivered  him  a  note  payable 
to  the  testator,  without  any  indorsement."  Sec  also  Michigan  Ins.  Co.  v.  Leaven- 
worth, ."30  Vt.  11. 

(y)  Watkiiis  V.  Maule,  2  Jac.  &  W.  237  ;  Malbon  t;.  Southard,  36  Maine   147. 


CH.  v.]  EXECUTORS   AKD    ADMESTISTRATORS.  IGl 

those  of  an  udiniiiistrator.  The  first  begin  from  the  ajipointnient 
in  the  will,  hotli  as  to  source  and  as  to  time  ;  and,  tiierefore,  an 
executor  may  do  and  receive  these  things  after  the  death  of  the 
testator,  and  l)cfore  probate  of  the  wilL  But  an  administrator, 
although  the  persons  who  have  a  right  to  tiie  administration  are 
pointed  out  by  the  law,  derives  all  his  authority  from  tlie  ai»p(jint- 
ment  as  an  act  of  the  law,  and  therefore  can  do  nothing  until 
the  appointment. (c) 

If  there  be  probate  of  a  will,  the  executor  therein  named  is 
fully  authorized  to  be  regarded  as  such,  until  the  ])robate  is  an- 
nulled. Hence  payment  to  an  executor  under  a  forged  will  is 
valid  after  probate,  but  not  before.  But  this  must  be  qualified 
so  far  as  to  prevent  a  party,  having  knowledge  of  the  forgery  and 
making  the  payment  in  fraud,  from  profiting  by  his  fraud. 

x\n  administrator  or  executor  can  only  bind  himself  l)y  his 
contracts ;  he  cannot  bind  the  assets  of  the  deceased.  There- 
fore, if  he  make,  indorse,  or  accept  negotiable  paper,  he  will  be 
held  personally  liable,  even  if  he  adds  to  his  own  name  the  name 
of  his  office,  signing  a  note,  for  example,  "  A,  as  executor  of 
B  ;  for  this  will  be  deemed  only  a  part  of  his  description,  or 
will  be  rejected  as  surplusage. (a)  But  if  he  chooses  to  exclude 
his  personal  liability  expressly,  as  by  the  words,  "  I  promise  to 
pay,  &c.  out  of  the  assets  of  C.  D.,  deceased,  and  not  otherwise," 
or  use  any  clearly  equivalent  language,  then  he  is  only  bound  so 
far  as  the  assets  extend.  But  the  instrument,  in  that  case,  will 
not  be  a  bill  of  exchange  or  promissory  note,  because  not  paya- 
ble at  all  events.  The  same  rule  is  applicable  to  guardians,  trus- 
tees, and  all  persons  acting  in  a  representative  capacity,  except 
agents.  (^) 

At  common  law,  an  executor  was  considered  as  residuary 
legatee.  For  this  reason,  and  also  for  the  technical  reason  that 
an  executor  could  not  sue  himself,  if  the  payee  and  holder  of  a 
note  made  the  maker  his  executor,  the  note  was  thereby  dis- 


(z)  Woolley  v.  Clark,  5  B.  &  Aid.  744  ;  Rand  v.  Hubbard,  4  Met.  256 ;  Allen  v. 
Dundas,  3  T.  R.  125. 

(a)  Childs  v.  Monins,  2  Brod.  &  B.  460 ;  King  v.  Thorn,  1  T.  R.  489  ;  Aspinall  v. 
Wake,  10  Bing.  55;  Davis  v.  French,  20  Maine,  21  ;  Walker  v.  Patterson,  36  Maine, 
273. 

(6)  Thacher  v.  Dinsmore,  5  Ma.ss.  299 ;  Forster  v.  Fuller,  6  Mass.  58.     And  seo 
ante,  pp.  36,  80,  89-91. 
Vol.  I.— L 


162  NOTES   AND   BILLS.  [CH  V. 

charged  ;  and  if  the  holder  of  a  bill  appointed  the  acceptor  his 
executor,  this  discharged  the  acceptor,  and  therefore  all  subse- 
quent parties. (c)  The  only  exceptions  were,  that  the  rule  did 
not  apply  if  the  assets  were  not  enough,  without  the  bill  or  note, 
to  pay  the  creditors,  and  perhaps,  for  this  is  not  clear,  the  lega- 
tees ;  or  that  the  executor  refused  the  appointment,  (f/)  For  the 
rule  has  been  applied  where,  of  several  joint  debtors,  one  was 
appointed  executor  ;  (e)  and  even  although  they  were  joint  and 
several ;  and  although  the  person  appointed  executor  died  with- 
out having  proved  the  will.(/) 

This  rule  was  never  held  to  apply  to  administrators  ;  (g)  nor 
does  it  exist  in  equity  in  respect  to  executors.  The  debt  is  con- 
sidered to  have  been  paid  by  the  executor  to  himself,  and  be- 
comes assets  in  his  hands. (A) 

In  this  country,  the  action  upon  a  note  or  bill  by  an  executor 
against  an  executor  is  as  impossible  as  in  England  ;  but  a  princi- 
ple similar  to  that  of  the  equity  courts  in  England  has  always 
prevailed  in  the  probate  courts  of  this  country.  That  is,  the 
executor  is  charged  with  the  amount  of  the  debt  as  if  paid  to 
him.({)  An  administrator  must  account  for  his  debt  to  his  intes- 
tate in  the  same  way.  And  it  has  been  said  that  the  reasons  for 
the  discharge  of  the  right  of  action  apply  as  effectually  to  an 
administrator  as  to  an  executor. (j) 

A  bequest  of  a  bill  or  note  to  a  party  liable  upon  it  discharges 
his  liability,  of  course.  But  a  bequest  to  any  party  "  of  all  the 
property"  in  a  house  does  not,  it  is  said,  carry  to  him  any  bills 
or  notes  contained  in  the  house  ;  unless  they  are  bank-notes, 
which  are  considered  as  cash. (A;)  We  should  be  inclined  to 
think,  however,  that  a  bequest  of  "  property,"  or  a  bequest  using 


(c)  Freakley  v.  Fox,  9  B.  &  C  130;  Wankford  v.  Wankford,  1  Sulk.  299;  Cheet 
ham  V.  Ward,  1  B.  &  P.  630;  Ncdhara's  Case,  8  Rep.  135;  Byles  on  Bills,  41, 
note  V. 

{(I)  Wankford  v.  Wankford,  1  Salk.  299 ;  Abram  i;.  Cunningham,  1  Vent.  303 

(f)  Com.  Dig.  Admin.  B.  5. 

(/)  Wankford  v.  Wankford,  I  Salk.  299  ;  Cora.  Dig.  Admin.  B.  5. 

Ij)  Nedham's  Case,  8  Ilcp.  IS.'). 

(A)  Williams  on  Executors,  816  ;  per  Lord  Tentcrden,  C.  J.,  in  Freakley  v.  Fox,  9 
B.  &  C.  134. 

(i)  Ipswich  Man.  Co.  v.  Story,  5  Met.  310. 

{j)  Stevens  ?;.  Gaylord,  1 1  Mass.  256. 

{k)  Bylcs  on  Bills,  135,  note  g. 


CH.  v.]  CORPORATIONS.  163 

any  equivalent  word,  so  described  as  to  include  and  contain  in 
fact  negotiable  instruments,  would  pass  them,  unless  something 
in  the  will  opposed  this  construction.  If  the  paper  was  payable 
to  bearer,  or  was  indorsed  in  blank,  and  in  either  way  negotiable 
by  delivery,  we  should  more  confidently  expect  that  it  would  go 
to  the  legatee. 


SECTION    X. 

OF  CORPORATIONS. 

At  common  law  a  corporation  could  bind  itself  only  by  its 
seal,  and  its  written  name  was  apparently  of  no  use  but  to  verify 
its  seal.  This  rule  was  subject  to  certain  exceptions,  however, 
at  a  very  early  period  ;  and  in  modern  times,  with  the  great 
increase  of  mercantile  and  trading  corporations,  it  has  been 
greatly  relaxed. (/)  In  this  country  it  was  long  since  entirely 
discarded. (w)  In  England,  at  the  present  day,  a  corporation 
may  draw  or  accept  bills  of  exchange,  when  expressly  authorized 
by  its  charter,  or  when  it  is  imperatively  necessary  for  the 
conducting  of  its  legitimate  business  ;  as  in  the  case  of  banking 
and  trading  corporations. (w)  But  according  to  the  better  opin- 
ion, the  power  is  confined  to  these  cases.  Therefore,  it  seems 
that  a  corporation,  created  for  the  purpose  of  supplying  the 
inhabitants  of  a  city  with  water,  cannot  accept  a  bill  of  exchange 


(1)  See  Henderson  v.  Australian  Royal  Mail  Steam  Nav.  Co.,  5  Ellis  &  B.  409 ; 
Australian  Royal  Mail  Steam  Nav.  Co.  v.  Marzetti,  11  Exch.  228;  Fishmongers'  Com- 
pany V.  Robertson,  5  Man.  &  G.  131  ;  Clark  v.  Cuckfield  Union,  1  Lowndes  &  M.  81, 
11  Eng.  L.  &  Eq.  443 ;  Copper  Miners'  Co.  v.  Fox,  16  Q.  B.  229  ;  Diggle  v.  London 
&  Blackwall  Railway  Co.,  5  Exch.  442  ;  Mayor  of  Ludlow  v.  Charlton,  6  M.  &  W.  815 
Arnold  v.  Mayor  of  Poole,  4  Man.  &  G.  860 ;  Paine  v.  Strand  Union,  8  Q.  B.  326 
Lamprell  v.  Billericay  Union,  3  Exch.  283;  Sanders  v.  St.  Neot's  Union,  8  Q.  B.  810 
Church  V.  Imperial  Gas  Light  &  Coke  Co.,  6  A.  &  E.  846 ;  Smart  v.  West  Ham  Union, 
10  Exch.  867  ;  Smith  v.  Cartwright,  6  Exch.  927 ;  Beverley  v.  Lincoln  Gas  Light  & 
Coke  Co.,  6  A.  &  E.  829;  Reuter  v.  Electric  Telegraph  Co.,  6  Ellis  &  B.  341,  37 
Eng.  L.  &  Eq.  189  ;  Lowe  v.  London  &  Northwestern  Railway  Co.,  18  Q.  B.  632. 

'm)  Bank  of  Columbia  v.  Patterson,  7  Cranch,  299.  And  see  cases  cited  in  1  Par- 
sons on  Cont.  118,  notec. 

(n)  The  Bank  of  England  and  the  East  India  Company  are  instances.  See  Rex  v. 
Big?  3  P.  Wms.  419;  Edie  v.  East  India  Co.,  2  Burr.  1216;  Murray  v.  East  India 
Co.,  5  B.  &  Aid.  204. 


1C4  NOTES   AND   BILLS.  [CH.  V. 

in  England. (o)  In  this  country,  however,  it  may  be  regarded 
as  settled,  that  the  power  of  corporations  to  become  parties  to 
bills  of  exchange  or  promissory  notes  is  coextensive  with  their 
power  to  contract  debts.  Wlienever  a  corporation  is  authorized 
to  contract  a  debt,  it  may  draw  a  bill  or  give  a  note  in  payment 
of  it.  Every  corporation,  therefore,  may  become  a  party  to 
bills  and  notes  for  some  purposes.  (/?)  Thus,  a  mere  religious 
corporation  may  need  fuel  for  its  rooms,  and  as  an  economical 
measure  may  buy  a  cargo  of  coal,  and  give  its  note  for  it ;  and 


(o)  Broughton  v.  Manchester  &.  S.  Water  Works  Co.,  3  B.  &  Aid.  1 .  Btiyley,  J.  said  : 
"  The  act  of  Parliament,  by  which  this  corporation  is  established,  does  not  contain  any 
express  power  by  which  they  are  enabled  to  become  parties  to  bills  of  exchange  or 
promissory  notes,  nor  is  there  anything  in  the  purpose  for  which  this  corporation  was 
established  from  which  it  is  to  be  implied  tliat  such  a  power  was  meant  to  be  given. 
It  seems  to  me  that  the  drawing  of  bills  of  exchange  was  quite  foreign  to  the  purpose 
for  which  this  corporate  body  was  established,  which  was  for  the  erecting  and  carrying 
on  waterworks  in  a  particular  place.  There  being  no  power  expressly  given  to  tlicm 
to  make  promissory  notes,  or  to  become  jjarties  to  bills  of  exchange,  I  should  doubt 
very  much  whether  such  a  corporation  would  have  any  power  so  to  bind  themselves  for 
purposes  foreign  to  those  for  which  they  were  originally  established."  Bist,  J.  .-^aid  : 
"  I  am  of  opinion  that  this  action  is  not  maintainal)Ie,  because  this  case  comes  within 
that  rule  of  law  by  which  corporations  are  prevented  from  binding  themselves  by  con- 
tract not  under  seal.  When  a  company  like  the  Bank  of  England,  or  East  India  Com- 
pany, are  incorporated  for  the  purposes  of  trade,  it  seems  to  result  from  the  very  object 
of  their  being  no  incorporated,  that  they  should  have  power  to  accept  bills  or  issue 
promissor}'  notes  ;  it  would  be  impossible  for  either  of  these  companies  to  go  on  with- 
out accepting  bills.  In  the  case  of  Shirk  v.  Iligligate  Archway  Co.,  5  Taunt.  792,  the 
Court  of  Common  Pleas  seemed  to  think,  tliat  unless  express  authority  was  given, 
by  the  act  establishing  the  company,  to  make  promissory  notes  eo  nomine,  a  corporation 
could  not  bind  itself  except  by  deed.  Now  there  is  nothing  in  the  act  of  Parliament 
establishing  this  company,  which  authorizes  them  to  bind  themselves,  except  by  deed. 
The  company,  too,  was  not  created  for  the  purposes  of  trade,  but  merely  to  carry  on 
the  business  of  supplying  the  inhabitants  of  a  particular  place  with  water.  Now  it  can- 
not ^)C  necessary,  for  this  purpose,  that  they  sliould  become  the  makers  of  promissory 
notes,  or  the  acceptors  of  bills  of  exchange.  As,  therefore,  the  nature  of  the  business 
in  which  they  are  engaged  does  not  raise  a  necessary  implication  that  tliey  sliould  liave 
the  power  to  accept  bills,  and  as  no  authority  is  expressly  given  by  the  act  of  Parlia- 
ment for  that  purpose,  I  am  of  opinion,  on  this  ground,  that  tliis  action  cannot  be  main- 
tained." The  case,  however,  was  decided  on  another  ground.  See  also,  East  London 
Water- Works  Co.  v.  Bailey,  4  Bing.  283. 

(p)  Barker  v.  Mechanic  Ins.  Co.,  3  Wend.  94  ;  Mott  v.  Hicks,  1  Cowcn,  ."ilS ;  Plant- 
ers' Bank  v.  Sharj),  6  How.  301,  302;  Marvine  v.  Hymcrs,  2  Kern.  223;  Bank  of 
Grencscc  v.  Patchin  Bank,  3  Kern.  .309  ;  Moss  v.  Oakley,  2  Hill,  26.')  ;  McCnllough  v. 
Moss,  5  Dcnio,  ^tftl ;  Attorney-General  v.  Life  and  Fire  In.'*.  Co.,  9  Paige,  4  70  ;  Camo 
V.  Brigliam,  39  Maine,  35;  Muim  v.  Commission  Co.,  15  Johns.  44  ;  Ivcilcy  v.  Mayor 
of  Brooklyn,  4  Hill,  2C3  ;  New  York  Floating  Derrick  Co.  v.  New  Jersey  Oil  Co.,  3 
Duer,  648. 


CH.  v.]  CORPORATIONS.  165 

such  a  note  would  undoubtedly  be  valid  in  this  country. (r/)  So 
also  a  bill  or  note  given  by  a  corporation  will  be  presumed  to 
have  been  given  in  the  course  of  its  legitimate  business,  until 
the  contraiy  appears. (r)  And  a  note  given  by  a  corporation 
will,  it  seems,  be  valid  in  the  hands  of  a  subsequent  indorsee, 
without  notice,  whatever  may  be  the  purpose  for  which  it  was 
given  ;  (s)  and  we  think  it  would  be  valid  in  the  hands  of  the 
payee,  unless  the  transaction  was  clearly  fraudulent,  and  the 
payee,  either  from  actual  knowledge  or  the  nature  of  the  trans- 
action, had  notice  of  it.  If,  for  example,  the  Trustees  of  Colum- 
bia College  in  New  York  bought  a  cargo  of  cotton,  and  gave 
their  negotiable  note  for  twenty  thousand  dollars,  the  seller 
might  suppose  that  they  had  need  of  some  means  of  transmitting 
a  large  amount  of  money,  and  found  that  they  could  do  it  to 
most  advantage  by  \ising  this  cotton  ;  or  that  they  wanted  it  for 
some  other  legitimate  purpose.  Such  a  note  would  clearly  be 
valid  in  the  hands  of  a  bona  fide  holder  without  notice  ;  nor  do 
we  think  that  the  nature  of  the  transaction  merely  would  be 
notice  to  the  original  payee  that  it  was  giveji  for  an  unauthor- 
ized purpose.  (^) 


(q)  See  cases  supra. 

(r)  Barker  v.  Mechanic  Ins.  Co.,  3  Wend.  94  ;  Hart  v.  Missouri  State  Mat.  F.  &  M. 
Ins.  Co.,  21  Misso.  91  ;  Safford  v.  Wyckoff,  4  Hill,  442.  See  McCuIIough  v.  Moss, 
5  Denio,  567. 

(s)  Bank  of  Genesee  v.  Patchin  Bank,  3  Kern.  309  ;  Willmarth  7j.  Crawford,  10 
Wend.  341.     But  see  Halstead  v.  Mayor  of  New  York,  .5  Barb.  218, 3  Comst.  430. 

(t)  In  Moss  V.  Rossie  Lead  Mining  Co.,  5  Hill,  137,  it  was  held,  that  if  an  incor- 
porated company  purchase  property  and  convert  it  to  their  own  use,  tliey  will  not  be 
permitted  to  defeat  a  recovery  for  the  price,  by  showing  that  the  purchase,  on  account 
of  the  nature  of  some  of  the  property,  was  probably,  though  not  necessarily,  an  abuse 
of  the  powers  granted  by  their  charter ;  otherwise,  if  the  vendor  was  apprised  at  the 
time  of  the  sale  that  the  company  were  acting  in  violation  of  their  charter.  In  that 
^case,  the  Rossie  Lead  Mining  Company,  a  corporation,  purchased  a  large  amount  of 
property  which  had  been  previously  used  by  the  vendor  in  carrying  on  the  business  of 
washing  and  smelting  lead  ore,  consisting  in  part  of  a  house  and  lot,  fifty  acres  of  im- 
proved land  with  several  houses  thereon,  a  building  which  had  been  used  for  a  store, 
a  school-house,  threshing-machine,  &c.  Hp.IcI,  in  an  action  upon  one  of  several  notes 
given  for  the  pui'chase-money,  that  the  purchase  was  not  necessarily  an  excess  of  the 
power  granted  by  the  charter,  and  that  the  plaintiff  was,  therefore,  entitled  to  recover. 
Cbwe.i,  J.  said:  "I  am  not  aware  that  a  corporation,  more  than  another,  may  pur- 
chase and  convert  an  article  to  its  own  use,  and  then  object  that  it  acted  beyond  the 
statute  power.  It  is  itself  a  sort  of  agent,  and  must  be  the  judge  as  between  itself  and 
the  vendor  whether  the  article  be  wanted  or  not.  The  vendor  cannot  pronounce  upon 
the  question.     A  school-house  or  threshing-machine  may  be  useful,  though  it  be  con- 


166  NOTES   AND   BILLS.  [CH.  V. 

If  it  appears  upon  the  face  of  a  bill  or  note  made  by  a  cor- 
poraiion,  that  the  corporation  was  prohibited  from  making  it,  it 
has  l)een  held  that  every  holder  must  take  notice  of  this  at  his 
peril,  (w) 

A  corporation  is  not  authorized,  it  is  said,  to  give  a  note  for 
the  accommodation  of  a  third  person  ;  and  any  one  who  receives 
such  a  note,  with  notice  of  the  circumstances  under  which  it  was 
given,  cannot  recover  upon  it.(y)  We  cannot  but  think,  how- 
ever, that  there  may  be  exceptions  to  this  rule. 


ceded  that  the  corporation  have  no  power  to  keep  school,  hire  a  schoolmaster,  or 
embark  in  the  employments  of  agriculture.  The  materials  of  either  may  have  been 
desirable  for  improving  the  legitimate  apparatus.  Being  on  the  spot,  it  might  have 
been  thought  prudent  to  take  them  to  pieces  and  devote  their  parts  to  lawful  repairs. 
The  purpose  is  a  secret  between  the  company  and  the  hands  that  transact  their  business ; 
and  as  against  the  vendors,  who  have  not  been  told  that  the  purchase  was  an  idle  one, 
the  comi)any  must  be  estopped.  If  they  really  abuse  their  power  in  making  purchases 
of  that  sort,  the  people  have  a  remedy  by  information  in  the  nature  of  a  quo  warranto. 
The  vendor  knows  not,  nor  can  he  conjecture,  that  his  vendees  arc  engaged  in  violating 
the  policy  of  the  country.  He  is  innocent :  the  vendees  alone  are  guilty."  But  see 
McCullough  V.  Moss,  5  Denio,  567.     See  also  Indiana  v.  Woram,  6  Hill,  33. 

(u)  Thus,  in  Broughton  v.  Manchester  &  S.  Water- Works  Co.,  3  B.  &  Aid.  1,  it  was 
held,  that  a  corporation,  other  than  the  Bank  of  England,  could  not  be  acceptors  of  a 
bill  of  exchange,  payable  at  a  less  period  than  six  montiis  from  the  date  ;  because  such 
a  ease  falls  within  the  provision  of  the  several  acts  of  Parliament  passed  for  the  protec- 
tion of  the  Bank  of  England,  by  which  it  is  enacted,  that  it  shall  not  be  lawful  for  any 
body  corporate  to  borrow,  owe,  or  take  up  any  money  upon  their  bills  or  notes  payable 
at  demand,  or  at  any  time  less  than  six  montiis  from  the  borrowing  thereof;  and  the 
objection  apjjcaring  on  the  face  of  the  bill,  no  recovery  could  be  had  thereon  by  any 
subsequent  indorsee.  Ilolroyd,  J.  said  :  "  I  take  it  to  be  clear,  that  where  a  statute  pro- 
hibits a  thing  to  be  done,  and  does  not  expressly  avoid  the  securities  which  fall  within 
the  prohibition,  there,  if  the  violation  of  the  law  docs  not  appear  on  tlie  face  of  the 
instrument,  and  the  party  taking  it  is  ignorant  that  it  svas  made  in  contravention  of  the 

statute,  it  is  an  available  security  in  the  hands  of  such  a  person But  here  the 

defendants  are  made  a  corporation  by  a  |)ul)lic  act  of  Parliament,  and  every  person  is 
bound  to  take  notice  of  that  act;  and  when,  therefore,  a  holder  of  a  bill,  though  a  bona 
Jide  indorsee,  takes  the  defendants'  acceptance,  he  must  know  that  they  arc  a  bodyf 
corporate  ;  and  he  therefore  receives  it,  knowing  it  to  be  the  acceptance  of  a  corporation 
prohibited  from  owing  money  on  such  a  bill  :  he  is  not,  therefore,  an  innocent  indorsee, 
because  he  takes  a  liill  which  he  knows  to  be  jirohibited  by  statute  "  And  see  SafTord 
V.  WyckoflT,  I  ILll,  11,  4  Hill,  442;  Attonuy-General  v.  Life  and  Fire  Ins.  Co.,  9 
Paige,  470. 

(r)  It  was  so  decided  in  the  recent  case  of  Bank  of  Genesee  v.  Patchin  Bank,  3 
Kern.  309.  Denio,  J.  said  :  "It  is  quite  dear  that  the  officers  of  a  banking  association 
or  other  corporation  have  no  power  to  engage  the  institution  as  the  surety  for  another, 
in  a  business  in  which  it  has  no  interest.  Such  a  transaction  is  without  the  scojie  of 
the  business  of  the  company.  The  antiiority  of  the  governing  ofiiccrs  of  a  corporation, 
to  affect  it  by  their  contracts  in  its  name,  is  of  the  same  general  character  as  that 


CH.  v.]  CORPORATIONS.  167 

It  may  Ijo  added,  that  a  corporation  may  be  sued  in  assumosit 
on  any  simple  contract  which  they  have  power  to  make. 

They  can  make  a  note  or  accept  a  bill  only  by  an  agent  or 
attorney.  But  they  can  give  tlic  requisite  authority  by  vote,  or 
by  conferring  any  powers  or  any  employment  upon  an  agent, 
which,  by  a  reasonable  implication,  gives  this  authority.  Thus, 
a  general  agent  for  business  in  which  notes  are  frequently  given, 
may  give  the  note  of  the  corporation. (i/;) 

But  an  agent  or  factor  employed  for  a  specific  business  can- 
not  go  beyond  it  and  give  a  note.  Thus,  in  Massachusetts 
many  years  ago  it  was  held,  that  an  agent  authorized  to  sell 
goods  for  a  corporation,  and  to  purchase  the  stock  of  which 
they  were  made,  and  even  to  purchase  this  on  credit,  could 
not  give  the  note  of  the  corporation.  (;r)  And  more  recently, 
the  Supreme  Court  of  the  same  State  held,  that  an  agent  au- 
thorized by  a  corporation  to  advance  money  to  a  mortgagor  of 
land  to  them,  for  a  specific  pvirpose,  could  not  bind  them  by 
giving  their  note  for  the  same  amount. (?/) 

A  corporation,  like  a  natural  person,  may  transact  its  business 
in  the  name  of  an  agent ;  and  the  agent's  name  is  then,  j)ro  hac 
vice,  the  name  of  the  corporation.  If,  therefore,  the  agent  of 
a  corporation  gives  a  bill  or  note  in  his  own  name,  but  for  tlie 
debt  or  in  the  business  of  the  corporation,  and  it  appears  that 
this  was  the  mode  in  which  the  corporation  usually  transacted 
its  business,  it  will  be  bound. (2^) 

whicli  a  partner  has  to  bind  the  firm.  In  citlier  case,  if  they  contract  in  a  matter  to 
which  the  business  of  the  corporation  or  partnership  does  not  extend,  their  engage- 
ments are  invalid  as  against  the  corporation,  for  want  of  authority  to  conclude  those  in 
whose  behalf  they  assume  to  act.  I  do  not  speak  now  of  a  case  where  the  particular 
transaction  is  forbidden  by  some  positive  law,  or  is  hostile  to  some  principle  of  public 
policy,  but  simply  as  to  cases  where  tlic  question  relates  to  the  authority  of  the  agent. 

Tiie  otliccrs  of  a  bank  have  no  right  to  indorse  in  its  behalf  the  paf)er  of  other 

persons  in  which  it  has  no  interest,  or  to  make  tlie  bank  a  party  to  paper  for  the 
accommodation  of  any  one.  Such  contracts  are  void,  upon  the  same  principle  that  an 
indorsement  by  a  partner  of  the  firm  name,  without  the  consent  of  his  copartners,  for 
the  accommodation  of  a  third  person,  would  lie  inoperative  against  the  firm." 

{w)  See  Narragansett  Bank  v.  Atlantic  Silk  Co.,  3  Met.  282;  McUcdge  v.  Boston 
Iron  Co ,  .")  Cush.  1.58. 

(x)  Emerson  v.  Providence  Hat  Man.  Co.,  12  Mass.  237. 

(y)  Webber  v.  Williams  College,  23  Pick.  302.     And  see  anie,  p.  116,  note  .t. 

(2)  This  point  was  much  considered  in  Mellodge  ;;.  Boston  Iron  Co.,  .5  Cush.  1.58. 
That  was  an  action  against  the  defendants  on  certain  promissory  notes,  signed 
"Horace  Gray  &  Co."     At  the  trial  the  judge  instructed  the  jury,  that,  as  the  defend 


168  NOTES   AND   BILLS.  [CH.  V. 

If  a  corporation,  certainly  authorized  to  make,  sign,  accept, 
or  indorse  negotiable  paper,  has  an  officer  autiiorizcd  to  use 
their  name  in  this  way,  and  this  officer  writes  his  own  name, 
as  drawer  of  a  bill  of  exchange,  with  the  express  addition  of 


ants'  corporate  name  did  not  appear  on  the  notes,  and  the  notes  on  their  fsice  did  not 
disclose  any  agency,  Horace  Gray  &  Company,  the  signers,  and  not  the  defendants, 
were  bound  thereby ;  but  that  this  was  not  to  be  understood  to  prevent  tlic  plaintiff" 
from  maintaining  his  action,  if  the  jury  should  be  satisfied  that  the  notes  were  in  fact 
the  notes  of  the  Boston  Iron  Company,  executed  under  a  name  adopted  and  sanctioned 
by  them  as  indicative  of  their  contracts.  It  was  held,  that  this  instruction  was  correct. 
Sh(ia\  C.  J.  said  :  "  The  effect  of  the  instruction  thus  given,  we  think,  was,  that  the 
facts  mentioned  in  the  prayer  for  instructions,  to  wit,  the  corporate  name  not  ajjpcaring 
on  the  notes,  and  the  notes  not  disclosing  any  agency,  but  signed  Horace  Gray  &  Com- 
pany, constituted  prima  facie  evidence  that  those  were  the  notes  of  Horace  Gray  &  Com- 
pany and  not  of  the  Boston  Iron  Company;  and,  standing  alone,  would  warrant  and 
recpiire  the  direction,  that  Horace  Gray  &  Company,  and  not  the  Boston  Iron  Com- 
pany, were  bound  by  them  ;  but  that  this  evidence  might  be  rebutted  and  controlled  by 
proof  (i//!fn(/e  that  they  were  in  fact  the  notes  of  the  Boston  Iron  Company,  because 
executed  under  a  name  adopted  and  sanctioned  by  them  as  indicative  of  their  contracts, 
and,  it  may  be  added,  given  in  satisfaction  of  their  debt.  The  court  are  of  0])inion  that 
this  direction  was  correct.  If  by  any  possible  proof  the  presum})tion  arising  from  the 
face  of  the  note,  and  from  the  form  of  the  execution,  from  the  corporate  name  of  the  com- 
pany not  being  used,  and  the  use  of  the  name  of  a  mercantile  firm,  could  be  rebutted, 
then  the  evidence  was  prima  facie,  and  not  conclusive.  It  seems  to  be  now  well  settled, 
in  this  Commonwealth,  since  the  great  multiiilication  of  corporations,  extending  to  al- 
most all  the  concerns  of  business,  that  trading  corporations,  whose  dealings  embrace  all 
transactions  from  the  largest  to  the  minutest,  and  atfect  almost  every  individual  in  the 
community,  are  affected  like  private  persons  with  obligations  arising  from  implications 
of  law,  and  from  equitable  duties  which  imply  obligation  ;  with  constructive  notice,  im- 
plied assent,  tacit  acquiescence,  ratifications  from  acts  and  from  silence,  and  from  their 
acting  upon  contracts  made  by  those  professing  to  be  their  agents  ;  and,  generally,  by 
those  legal  and  equitable  considerations  which  affect  the  rights  of  natural  persons.  Wc 
arc  not  dealing  here  with  the  weight,  force,  or  effect  of  the  evidence,  but  oidy  whether 
any  evidence  aliunde  could  control  the  presumjjtion  arising  from  tiic  notes  ;  and  we 
tliink  there  was  evidence  competent  to  go  to  the  jury,  from  which  they  might  infer  that 
the  defendants  had  so  adopted  a  name,  other  than  their  corporate  name,  for  the  special 
purpose  of  giving  notes,  as  to  be  bound  i)y  it  when  used  by  a  general  agent,  in  liquida- 
tion of  tiieir  own  debts Under  this  same  objection,  also,  the  question  was  dis- 
cussed, whether  n  corporation  can  adopt  tiie  name  of  a  mercantile  firm,  and  biml  them- 
selves by  notes  given  in  its  name.  It  may  not  be  a  wise  arrangement,  Itut  we  are  not 
p'-epared  to  say  they  cannot  do  it.  8up])ose  the  case,  which  actiudiy  occurred,  as  ap- 
pears in  the  case  of  Goddard  i\  Pratt,  16  Pick.  412,  that  a  nianufacttiring  corporation 
pass  a  vote  or  by-law,  providing  that  all  their  mercantile  business  shall  l)e  done  and 
contracts  made  in  the  mime  of  a  parinersliip,  whose  stock  they  have  taken,  and  to 
whose  bu>iness  they  have  succeeded  This  may  lie  wise  in  such  a  case,  in  order  to  keep 
up  an  establishcfl,  extensive,  and  valmible  correspondence,  and  retain  the  run  of  custom 
and  gooil-will  of  an  old,  established  firm.  That  case  was  the  reverse  of  the  present, 
and  the  stru^gh'  there  was  to  charge  the  firm,  who  defended  on  the  ground  that  their 
firm  name  designated  the  obligations  of  the  company,  and  not  their  own  ;  and  'he  cusf 


CH.  v.]  CORPORATIONS.  169 

his  office,  it  seems  that  he  will  be  held  to  do  this  officially,  and 
not  personally,  and  to  bind  the  corporation  and  not  himself. (a) 
And  a  bill  drawn  upon  and  accepted  by  him  in  the  same  way, 
will  be  held  to  have  been  drawn  upon  and  accepted  by  the 
corporation.  (6) 

Any  si<^nature  of  a  corporation  should  always  be  by  writing 
the  name  of  the  corporation,  and  adding,  "  by  A.  B.,  agent,"  or 
"  treasurer,"  &c.  And  the  body  of  the  instrument  should  con- 
tain the  name  of  the  corporation  only.     But  it  is  very  common 

to  find  a  note  running  "  I,  A.  B.,  Treasurer  of  Company, 

promise,"  &c.,  and  signed  "  A.  B.,  Treasurer  of Company" ; 

and  a  note  actually  of  the  corporation,  if  made  and  signed  in 
this  way,  should,  we  think,  be  held  in  law  to  be  their  note.(6') 


turned  on  the  question,  whetlier  the  plaintiff,  when  he  dealt  with  them,  knew  of  the  dis- 
solution of  the  old  firm  ;  if  he  did  not,  then,  by  a  well-known  rule  of  the  law  of  part- 
nership, the  firm  was  bound  to  him,  not  having  given  notice  of  their  dissolution.  Had 
the  point  in  that  case  been  whether  the  corporation  were  bound,  we  can  have  no  doubt 
that  they  would  have  been  held  bound  by  tiieir  vote  for  notes  made  in  the  name  desig- 
nated." And  see,  to  the  same  cflTect,  Conro  v.  Port  Henry  Iron  Co.,  12  Barb.  27,  55. 
See  also,  ante,  p.  92,  note  y. 

(a)  Thus,  in  Witte  v.  Derby  Fishing  Co.,  2  Conn.  260,  a  bill  was  drawn  by  the 
president  of  the  conipanj',  containing  a  direction  to  tlie  drawee  to  place  the  amount  "  to 
account  of  the  Derby  Fishing  Company,"  and  signed  "  Canficld  Gillet,  President." 
Held,  that  the  company  were  lialile  as  drawers.  So  in  Safford  v.  Wyckotf,  1  Hill,  11, 
4  Hill,  442,  it  was  held,  that  a  bill  of  exchange  commencing,  "  Fanners'  Bank  of  Seneca 
County,"  directing  the  drawee,  afier  payment,  to  "charge  this  institution,"  and  signed 
"J.  J.  Fenton,  Cashier,"  was  to  be  deemed  tlie  act  of  the  bank.  But  in  Kean  v.  Davis, 
1  N.  J.  683,  where  a  bill  of  exchange  directed  the  drawee  to  "charge  as  ordered,"  and 
was  signed  "  Jolm  Kean,  President  E.  &  S.  R.  R.  Co.,"  it  was  lir^ld,  that  Kean  was, 
prima  facie,  personally  liable  as  drawer. 

(6)  In  Shelton  v.  Darling,  2  Conn.  435,  the  bill  was  directed  to  "  Noyes  Darling, 
Esq.,  Agent  of  the  Commission  Company,"  and  was  accepted  '•  Noyes  Darling,  Agent 
C.  C."  Held,  tliat  it  was  the  acceptance  of  the  company,  and  not  of  Darling.  So  in 
Farmers'  and  Mechanics'  Bank  ;;.  Troy  City  Bank,  1  Doug.  Mich.  457,  it  was  held, 
that  a  bill  of  exchange  directed  to  "John  A.  Welles,  Cashier  Farmers'  and  Mechanics' 
Bank  of  Michigan,"  and  accepted  by  writing  across  the  face  thereof,  "  Accepted,  John 
A.  Welles,  Cashier,"  was  drawn  upon  and  accepted  by  the  bank,  and  not  by  Welles  in 
his  individual  capacity.  In  Moss  v.  Livingston,  4  Comst.  208,  a  bill  was  drawn  on, 
and  accepted  by  "J.  R.  L.,  President  of  the  Rosendale  Manufacturing  Co."  That 
company  was  a  corporation,  and  J.  R.  L.  was  the  president ;  but  there  was  no  proof  that 
he  was  authorized  to  bind  the  company  by  his  acceptance.  Held,  that  an  action  on  the 
acceptance  was  properly  brought  against  J.  R.  L.  individually.     See  ante,  p.  97,  note  o. 

(c)  Mann  v.  Chandler,  9  Mass.  335.  But  see  Barker  v.  Mechanic  Fire  Ins.  Co.,  3 
Wend.  94  ;  Brockway  v.  Allen,  17  Wend.  40  ;  Hills  v  Bannister,  8  Cowen,  31  ;  M'Clure 
V.  Memiett,  I  Blackf.  189;  Meai-s  v.  Graham,  8  Blackf  143;  Cleaveland  v.  Stewart,  3 
Ga.  283. 

VOL.  I.  15 


170  NOTES   AND  BILLS.  [CH.  V. 

If  the  note  begins,  "  The  President  and  Directors  of Com- 
pany ]»roniise,"  <fec.,  and  is  signed  "  A.  B.,  President,"  or  "  Sec- 
retary," or  "  Cashier,"  or  "  Treasurer,"  or  "  Agent,"  it  is  un- 
doubt(idly  the  note  of  tlie  corporation. (i/)  In  fact  bank-bills 
are  universally  signed  in  this  way.  It  has  been  said,  that  if 
a  note  be  in  this  form,  "  I,  John  Franklin,  President  of  the 
Mechanic  Fire  Insurance  Company,  promise,"  &c.,  (Signed) 
"John  Franklin";  or  in  this  form,  "I  promise  to  pay,"  <fec., 
(Signed)  "John  Franklin,  President  of  the  Mechanic  Fire  In- 
surance Company " ;  that  in  both  of  these  cases  it  is  the  noie 
of  Franklin,  and  not  of  the  Company. (e)  But  we  doubt  the 
correctness  of  these  positions.  There  can  be  no  reasonable 
doubt,  in  either  of  the  above  cases,  that  the  intention  was  to 
bind  the  company,  and  not  the  president  personally. (/) 

If  a  bill  or  note  is  made  payable  to  "  A.  B.,  Cashier,"  we 
have  authority  for  saying  that  an  action  may  be  maintained 
upon  it,  either  by  A.  B.  personally, (^j^)  or  by  the  bank  of  which 
he  is  cashier,  if  the  paper  was  actually  made  and  received  on 
account  of  the  bank.(/i)  And  where  a  promissory  note,  was 
made  payable  "  to  the  Cashier  of  the  Commercial  Bank  or  his 
order,"  and  the  consideration  proceeded  from  the  bank,  it  was 
held,  that  an  action  on  the  note  might  be  maintained  in  the 
name  of  the  bank  as  the  promisee. (j)      A  note  or  bill  made 


(rf)  Mott  V.  Hicks,  1  Cowen,  513;  Pitman  v.  Kintner,  5  Blackf.  250;  Commercial 
Bank  v.  Newport  Man.  Co.,  1  B.  Mon.  13 ;  ShotwcU  v.  M'Kown,  2  South.  828.     In 
Fitch  V.  Lawton,  6  How.  Miss.  371,  the  note  was  in  the  followin<^  form  :  — 
Post  Note.  "  Coinmercial  Dank  of  Bodruy, 

$  100.  —  No.  40.  Rodney,  Miss.,  8  March,  1839. 

Six  months  after  date,  we  promise  to  pay  R.  W.  Wortliin<,'ton  or  order  one  hundred 
dollars,  at  the  hank  in  Rodney,  with  five  per  cent  interest  until  due. 

J.  Lawton,  Cash'r.  Thomas  Freeland,  Pres't." 

Ihkl,  that  prima  facie  it  was  binding  upon  Freeland  and  Lawton  individually.     Sed 
qucere. 

(e)  Per  Savcuje,  C.  J.,  in  Barker  v.  Mechanic  Fire  Ins.  Co.,  3  Wend.  94. 

(/)  See  Lindus  v.  Melrose,  3  IL  &  N.  177;  A|.'«s  v.  Nicholson,  1  IL  &  N.  1G5  ; 
Ilealey  v.  Story,  3  Exch.  3  ;  Penkivil  v.  Council,  5  Fxch.  381. 

((/)  Fairfield  v.  Adams,  16  Pick.  381  ;  Shaw  v.  Stone,  1  Cush.  228,  254. 

(Ii)  Watcrvlict  Bank  i-.  White,  1  Dcnio,  008  ;  Barney  i'.  Ncwconih,  9  Cush  46  ;  Du- 
pont  V.  Mount  Pleasant  Ferry  Co.,  9  Rich.  255;  Wright  v.  Boyd,  3  Barl).  523. 

(i)  Commercial  Bank  v.  French,  21  Pick.  486.  Morton,  J.  said  :  "  The  note  is  in 
terms  payal)ie  '  to  the  cashier  of  the  Commercial  Bank  '  ;  and  the  defendant  contenda 
that  the  acti<»n  should  have  been  brought  in  the  name  of  the  ])erson  who  tvar,  then 
cashier,  and  will  not  .lie  in  the  name  of  the  corporation.    It  is  not  denied  tluu  the  prop- 


CH.  v.]  CORPORATIONS.  171 

payable  to  the  order  of  the  cashier  of  a  bank  authorized  by- 
its  charter  to  indorse,  is  as  negotiable  as  if  payable  to  the  order 
of  the  bank. (7) 

If  a  bill  or  note  belonging  to  a  bank  be  indorsed  "  A.  B., 
Cashier,"  there  may  be  some  doubt  wliether  this  alone  will 
be  sufficient  to  pass  the  property  in  the  note  ;  and  still  more 
would  it  l)e  doubtful  whether  it  would  render  the  bank  liable 
as  indorscr.  But  it  has  been  satisfactorily  established  that  the 
holder  may  fill  up  such  an  indorsement  so  that  it  will  read 
"The  President  and  Directors  of Bank,  by  A.  B.,  Cash- 
ier. (^^)     We   have  already  seen  that  such  an  indorsement  will 


erty  of  the  note  is,  and  ever  has  been,  in  the  plaintiffs  ;  but  the  argument  is,  that  the 
promise  bein<;'  in  the  name  of  tlie  casliier,  although  made  to  him  iu  trust,  and  for  the 

benefit  of  the  corporation,  it  can  only  be  enforced  in  his  name A  contract  may 

be  made  to  or  with  a  person,  as  well  by  description  as  by  name.  And  where  the  par- 
ties can  be  ascertained,  it  will  be  valid,  although  their  names  be  mistaken  or  tiieir  de- 
scription be  incorrect.  It  cannot  be  doubted  that  a  note  to  the  Commercial  Bank  would 
be  valid,  and  might  be  declared  on  as  a  promise  to  the  plaintiffs,  although  their  legal 
name  is,  '  The  President,  Directors,  and  Company  of  the  Commercial  Bank.'  So  a 
contract  with  the  stockholders,  or  with  the  president  and  directors,  or  with  the  directors 
of  the  Commercial  Bank,  would  doubtless  be,  iu  its  legal  effects,  a  contract  with  the 
corporation.  It  is  not  easy  to  perceive  why  a  contract  with  the  cashier  of  a  bank  is  not 
a  contract  with  the  bank  itself.  The  accounts  of  banks  with  each  other  are  usually  kept 
in  form  with  the  cashiers,  but  undoubtedly  the  banks  themselves  are  the  real  parties  to 
them.  The  Master,  &c.  of  Sussex  Sidney  College  v.  Davenport,  1  Wilson,  184.  A 
corporation  being  an  incorporeal  being,  and  having  no  existence  but  in  law,  can  neither 
make  nor  accept  contracts,  receive  nor  pay  out  money,  but  by  the  agency  of  its  officers. 
They  are  the  hands  of  the  corporation  by  which  they  execute  their  contracts,  and  re- 
ceive and  make  payments.  Of  these  officers  the  cashier  is  the  principal.  If  the  note 
had  been  made  to  the  corporation,  by  its  appropriate  name,  the  same  officer  would  have 
demanded  and  received  payment,  or  would  have  given  notice  of  non-payment  and  pro- 
tested it,  and,  had  it  been  negotiated,  would  have  made  the  indorsement,  and  in  pre- 
cisely the  same  form  as  he  would  upon  this  note The  principle  is,  that  the 

promise  must  be  understood  according  to  the  intention  of  the  parties.  If  in  truth  it  be 
an  undertaking  to  the  corporation,  whether  a  right  or  a  wrong  name,  whether  the  name 
of  the  corporation  or  of  some  of  its  officers  be  used,  it  should  be  declared  on  and 
treated  as  a  promise  to  the  corporation.  And  there  is  no  so  safe  criterion  as  the  consid- 
eration. If  this  proceed  from  the  corporation,  it  raises  a  very  strong  presumption  that 
the  promise  is  made  to  them.  If  no  express  promise  be  made,  but  it  be  left  to  legal 
implication,  it  must  be  to  them."  And  see  Medway  Cotton  Manufactory  v.  Adams,  10 
Mass.  3G0. 

(_/)  Haynes  v.  Beckman,  6  La.  Ann.  224. 

{k)  Northampton  Bank  v.  Pepoon,  11  Mass.  288  ;  Folger  v.  Chase,  18  Pick.  63.  In 
tlie  recent  case  of  Bank  of  Genesee  v.  Patchin  Bank,  3  Kern.  309,  where  the  indorse- 
ment was  in  the  same  form,  and  the  action  was  brought  against  the  bank  as  indorser, 
Denio,  J.  said  :  "  I  find  some  difficulty  hi  saying  that  this  indorsement,  as  it  stands, 
can  be  held  to  be  the  contract  of  the  defendant.    But  I  am  of  opinion  that  the  defend- 


172  NOTES    AND    BILLS.  [CH.  V 

not  render  tlie  cashier  personally  liable. (Z)  A  person  wlio  car- 
ries on  business  on  his  own  account,  in  the  name  of  a  company 
which  has  been  incorporated  but  not  organized,  and  receives 
in  payment  of  a  debt  contracted  with  him  in  such  business  a 
promissory  note  payable  to  the  order  of  the  corporation,  may 
transfer  the  note  by  indorsing  it  in  his  own  name.(m) 

It  is  doubtful  whether  the  president,  secretary,  treasurer, 
cashier,  or  any  other  officer  of  a  corporation,  has  prima  facie 
a  general  authority  to  bind  the  corporation  as  a  party  to  bills 


ant  should  be  held  liable  as  indorser  upon  a  different  principle,  —  that  of  allowing  the 
indorsement  to  be  filled  up  according  to  the  intention  of  the  parties.  In  the  Northamp- 
ton Bank  v.  Pei)Oon,  1 1  Mass.  288,  the  defendant  was  sued  as  the  maker  of  a  negotiable 
promissory  note,  which  had  been  indorsed  to  and  held  by  the  Berkshire  Bank  ;  and  the 
question  was,  as  to  the  transfer  by  that  bank  to  the  plaintiff.  The  indorsement  was  by 
one  Learned,  an  attorney,  with  full  authority  from  the  board  of  directors ;  but  the  form 
in  which  it  was  done  was  by  the  attorney  writing  his  own  name  upon  the  note,  adding, 
'as  attorney  '  The  formal  words  of  a  common  indorsement  appear  to  have  been  in  the 
first  instance  written  over  the  name  of  the  attorney,  but  the  court  allowed  it  to  be  al- 
tered and  filled  up  as  an  indorsement  by  the  Berkshire  Bank,  according  to  the  intent. 
The  court,  Chief  Justice  Parker  giving  the  opinion,  upon  a  motion  for  a  new  trial,  said  : 
'  We  are  all  satisfied  that  if  the  authority  of  Learned  was  good  to  indorse  as  attorney, 
the  plaintiffs  may  erase  the  words  written  over  liis  name,  and  substitute  other  words, 
which  will  give  effect  to  the  indorsement'  Folgcr  v.  Chase,  18  I'ick.  63,  presented 
substantially  the  same  question.  The  plaintiff,  in  an  action  against  the  prior  parties  to 
several  notes  which  had  been  indorsed  to,  and  held  by,  the  Pheenix  Bank,  made  title  to 
the  notes  by  the  indorsement  of  the  cashier  of  that  bank  made  in  the  same  form  with 
that  of  the  bill  in  question,  namely,  '  P.  IL  Folger,  Cashier.'  It  was  held  that  the 
plaintiffs  were  entitled  to  recover,  tlie  court  saying:  'As  to  the  objection  that  the  in- 
dorsement is  not  made  in  the  name  of  the  corporation,  we  think  tlie  indorsement  by  the 
cashier,  in  his  official  capacity,  sufficiently  shows  that  the  indorsement  was  made  in  he- 
half  of  the  bank  ;  and  if  that  is  not  sufficiently  certain,  the  plaintiffs  have  a  right  now  to 
prefix  the  name  of  the  corporation.'  It  will  not  fail  to  be  remarked,  that  these  actions 
were  not  against  the  bank  whose  officers  had  indorsed  the  pajjer,  but  against  ])rior  par- 
ties ;  but  the  (pu'stion  in  each  case  was  as  to  the  effect  of  what  had  been  done  towards 
transferring  the  paper.  This,  however,  does  not  affect  their  ai>plication  to  this  case; 
for  if  the  indorsement  operated  to  transfer  the  paper  upon  the  principles  of  the  law 
merchant,  it  at  the  same  time  created  I)y  force  of  the  same  law  the  ()l)ligation  of  indorse!'. 
If  the  holder  in  these  cases  could  write  the  name  of  the  corporation  over  the  signature 
of  the  officer,  the  contract  would  then  be  in  the  usual  form,  and  would  carry  with  it 
the  ordiiniry  consequences.  The  princijjle  thus  settled  by  the  Supreme  Court  of  Mas- 
sachusetts carries  into  effect  tiie  intention  of  tiie  jjarties  to  such  transactions,  is  in 
accordance  with  legal  analogies,  by  which  effect  is  given  to  indorsements  on  negotiable 
paper  by  allowing  them  to  be  filled  up  in  such  nnmner  as  to  carry  tint  what  was  de- 
signed, and  is  not  opposed  to  any  case  in  our  own  courts.  1  am  disposed  to  follow  it  iu 
this  ease."     The  ])oint  was  not  decided  by  the  court. 

(/)   Sec  ante,  p.  96,  note  /«. 

(m)  Bjyant  v.  Eastman,  7  Cush.  111. 


en.  v.]  CORPORATIONS.  173 

of  exchange  or  promissory  notes. (li)  It  has  been  held,  how- 
ever, tliat  the  cashier  of  a  bank  has  prima  facie  authority  to 
indorse  all  paj^er  belonging  to  the  bank,  so  as  to  pass  the  prop- 
erty and  render  the  bank  liable  as  indorser.(o)  That  he  has 
authority  to  indorse,  for  the  purpose  of  collection  merely,  tliere 
is  no  doubt. (/?)     It  may  be  well  to  remember,  that  at  common 


(n)  See  Moss  v.  Livingston,  4  Comst.  208;  McCullough  v.  Moss,  5  Denio,  567; 
Farmers'  and  Mechanics'  Bank  v.  Troy  City  Bank,  1  Doug.  Mich.  457. 

(o)  Tims,  in  Wild  v.  Bank  of  Passamaquoddy,  3  Mason,  505,  Slorj,  J.  said:  "  Tlifi. 
ca.-;hicr  of  a  bank  is,  virlute  officii,  generally  intrusted  with  the  notes,  securities,  and 
other  funds  of  the  bank,  and  is  held  out  to  the  world  by  the  bank  as  its  general  agent 
in  the  negotiation,  management,  and  disposal  of  them.  Prima  facie,  therefore,  he 
must  be  deemed  to  have  authority  to  transfer  and  indorse  negotiable  securities,  held 
by  the  bank,  for  its  use  and  jn  its  behalf.  No  special  authority  for  this  purpose  is 
necessary  to  be  proved.  If  any  bank  chooses  to  depart  from  this  general  course  of 
business,  it  is  certainly  at  liberty  so  to  do ;  but  in  such  case  it  is  mcumbent  on  the  bank 
to  show  that  it  has  interposed  a  restriction,  and  that  such  restriction  is  known  to  those 
with  whom  it  is  in  the  habit  of  doing  business.  In  the  present  case,  the  cashier  has,  as 
cashier,  indorsed  the  bill  in  behalf  of  the  bank,  and  this  \s  prima  facie  evidence  of  au- 
thority, it  being  within  tJie  ordinary  duties  performed  by  such  an  officer.  If  he  was 
restricted  in  his  authority,  it  is  for  the  defendants  to  show  it.  The  proof  is  in  their 
possession,  luid  tlie  plaintiff,  who  is  a  stranger  to  their  regulations,  cannot  be  presumed 
to  be  conusant  of  it."  So  in  Fleckner  v.  U.  S.  Bank,  8  Wheat.  338,  360,  Story,  J., 
delivering  the  opinion  of  the  court,  said :  "  We  are  very  much  inclined  to  think  that 
tlie  indorsement  of  notes,  like  the  present,  for  the  use  of  the  bank,  falls  within  the  ordi- 
nary duties  and  rights  belonging  to  the  cashier  of  the  bank,  at  least  if  his  office  be  like 
that  of  similar  institutions,  and  his  rights  and  duties  are  not  otherwise  restricted.  The 
cashier  is  usually  intrusted  with  all  the  funds  of  the  bank,  in  cash,  notes,  bills,  &c.,  to 
be  used,  from  time  to  time,  for  the  ordinary  and  extraordinary  exigencies  of  the  bank. 
He  receives  directly,  or  through  the  subordinate  officers,  all  moneys  and  notes.  He 
delivers  up  all  discounted  notes,  and  other  property,  when  payments  have  been  duly 
made.  He  draws  checks,  from  time  to  time,  for  moneys,  wherever  the  liank  has  de- 
posits. In  short,  he  is  considered  the  executive  officer,  through  whom,  and  by  whom, 
the  whole  moneyed  operations  of  the  bank  in  paying  or  receiving  debts,  or  discharging 
or  transferring  securities,  are  to  be  conducted.  It  does  not  seem  too  much,  then,  to 
infer,  in  the  absence  of  all  positive  restrictions,  that  it  is  his  duty  as  well  to  apply  the 
negotiable  funds  as  the  moneyed  capital  of  the  bank  to  discharge  its  debts  and  obliga- 
tions." And  see,  to  the  same  effect,  Everett  v.  United  States,  6  Port.  Ala.  166  ;  Harper 
V.  Calhoun,  7  How.  Miss.  203;  Farrar  v.  Oilman,  19  Maine,  440.  But  sec  U.  8. 
Bank  v.  Fleckner,  8  Mart.  La.  309,  and  eases  cited  in  next  note. 

(/))  Hartford  Bank  v.  Barry,  17  Mass.  94  ;  Elliot  v.  Abbot,  12  N  H.  549.  This  was 
an  action  of  assumpsit,  upon  a  promissory  note,  dated  Sei)ternber  30,  1839,  payable  to 
the  President,  Directors,  and  Co.  of  the  Ashuelot  Bank,  or  order,  in  sixty  days  and 
grace,  and  alleged  to  be  indorsed  by  the  cashier  of  the  bank  to  the  ])laintiff.  The  note 
in  question  was  signed  by  John  Townsend  as  principal,  and  by  the  defendant  as  surety, 
and  had  upon  it  the  indorsement  of  the  cashier  of  the  bank.  In  giving  the  opinion  of 
the  court,  Parker,  C.  J.  said :  "Although  the  bank  never  had  any  interest  in  this  note, 
we  see  no  objection  to  regarding  it  as  having  been  made  to  them,  and  indorsed  to  the 
15* 


174  NOTES   AND   BILLS.  [CH.  V. 

law  no  stockholders  of  any  corporation  are  liable  for  its  debts, 
in  any  form.  But  this  rule  is  importantly  qualified  by  statutes 
in  many  of  our  States. 

plaintiff,  if  the  indorsement  can  be  upheld  upon  the  evidence.  The  signers  did  promise 
to  pav  the  bank ;  and  as  they  made  tlie  promise  negotiable,  the  bank  might  well  trans- 
fer it.  And  it  makes  no  difference  to  the  defendant,  whether  the  bank  discounted  the 
note,  and  then  sold  and  indorsed  it  to  the  plaintiff^;  or  whether  the  plaintiff,  iiaving 
funds  in  the  bank,  furnished  the  money  in  the  first  instance,  the  bank  indorsing  the 
note  to  him,  and  the  defendant  assenting  to  the  transfer.  We  come,  then,  to  the 
question.  Has  this  note  been  indorsed  to  the  plaintiff,  by  the  bank  ?     Is  that  allegation 

in  the  plaintiff's  declaration  sustained  ?     The  defendant  may  deny  this The 

ground  upon  which  the  cashier  may  indorse  the  name  of  the  bank,  and  transfer  the 
legal  interest,  in  any  case,  is  not  because  the  indorsement  is  merely  nominal,  transfer- 
ring no  actual  property.  If  it  were  so,  this  indorsement  might  be  supported  as  the 
indorsement  of  the  bank.  But  it  is,  that  the  cashier  is  the  agent  of  the  bank  for  that 
purpose ;  —  that,  by  virtue  of  his  appointment  as  cashier,  the  bank  authorizes  him  to 
make  indorsements  in  such  cases.  Tested  by  this  principle,  the  indorsement  in  this 
case  must  fail.  It  is  not  the  act  of  the  bank,  because  not  made  by  an  agent  having 
power  to  make  an  indorsement  in  such  case.  The  directors  are  the  general  agents  of 
the  bank.  The  cashier  is  a  special  agent,  and  a  matter  of  this  kind  is  not  within  the 
scope  of  his  authority.  The  plaintiff's  allegation  that  the  note  was  indorsed  by  the 
bank,  therefore,  fails  ;  and  this  is  a  material  allegation  as  the  case  now  stands." 


CH.  VI.]  CONSIDERATION.  175 


CHAPTER    VI. 

OF    THE    CONSIDERATION. 


SECTION    I. 

OF   THE   GENERAL  PRINCIPLES    IN    RELATION  TO   THE   CONSIDERATION 
OF   NOTES   AND    BILLS. 

By  the  rules  of  the  common  law,  no  promise  which  is  not 
made  for  a  consideration  can  be  enforced.  This  consideration 
may  be  either  a  gain  or  benefit  of  any  kind  to  him  who  makes 
the  promise,  or  a  loss  or  injury  of  any  kind  suffered  by  him 
to  whom  it  is  made  ;  such  gain  being  the  cause  of  or  the 
inducement  to  the  promise,  and  the  promise  being  the  cause 
of  or  the  inducement  to  such  loss. 

To  this  rule  there  is  an  exception,  by  the  ancient  law,  in 
favor  of  a  written  promise  which  has  a  seal  attached  to  it ; 
or,  as  it  is  commonly  expressed,  a  promise  under  seal ;  for 
the  seal,  according  to  the  law,  imports  a  consideration.  And 
there  is  another  more  recent  exception  by  the  law  merchant, 
in  favor  of  negotiable  bills  and  notes  in  the  hands  of  third 
parties. 

Even  as  between  immediate  parties,  this  exception  has  some 
application.  For  as  between  them,  unlike  the  case  of  other 
parol  contracts,  a  consideration  is  presumed  in  the  first  in- 
stance, and  therefore  need  not  be  proved.  But  this  presump- 
tion may  be  rebutted  by  evidence  ;  and  proof  that  there  was 
no  consideration  in  fact  will  constitute  a  perfect  defence.  As 
to  subsequent  bona  fide  holders,  on  the  other  hand,  this  pre- 
sumption is  conclusive.  As  to  them,  it  is  immaterial  wheth- 
er there  was  any  consideration  between  prior  parties  or  not. 
Therefore,  a  maker  cannot  defend  himself,  on  the  ground  that 
he  promised  without  consideration,  against  the  suit  of  an  in- 
dorsee ;  nor  can  an  indorser  against  the  suit  of  the  indorsee  of 


176  NOTES   AND    BILLS.  [CH.  VI. 

his  indorsee.  But  a  maker  sued  by  the  payee,  or  an  indorser 
by  his  indorsee,  or,  in  general,  any  promisor  sued  by  the  party 
to  whom  he  directly  promises,  may  make  this  defence. 

We  shall  find  both  the  reason  of  this  rule  and  the  limitation 
of  it  in  the  nature  and  purpose  of  negotiable  paper.  It  is  in- 
tended to  represent  money  ;  and  the  rules  of  law  are  intended  to 
make  this  representation  accurate  and  adequate.  A,  then,  hold- 
ing a  note  against  B,  indorses  it  to  C  in  some  business  transac- 
tion, as  money.  C  can  judge  for  himself  of  B's  ability  to  pay, 
and  of  A's,  and  accepts  the  note.  Whether  A  paid  anything  to 
B  for  it,  or  whether  B  had  any  consideration  whatever,  or  whether 
if  there  were  a  consideration  it  has  or  has  not  failed,  C  knows 
not.  Perhaps  he  could  ascertain  this  by  sufficient  inquiry  ;  but 
the  inquiry  would  require  much  time  and  labor,  and  could  not 
be  made  in  every  case  in  which  negotiable  paper  is  used  in  busi- 
ness, without  inconvenience  so  great  as  very  seriously  to  dimin- 
ish the  employment  and  the  usefulness  of  such  paper.  The  law, 
therefore,  takes  care  of  this  for  him.  If  C  receives  the  note  in 
good  faith,  B  cannot  interpose  the  objection  of  want  or  failure 
of  consideration.  The  presumption  is  absolute  as  to  him :  and 
so  it  is  in  favor  of  any  party  against  any  other  party,  excepting 
him  from  whom  he,  in  reference  to  whom  the  question  is  raised, 
immediately  received  it. 

In  the  case  before  supposed,  C  stands  in  a  different  relation  to 
A  from  what  he  does  to  B.  Whether  any  consideration  passed 
between  A  and  B,  he  cannot  be  supposed  to  know,  and  the  law 
infers  or  rather  supplies  it  for  him.  But  whether  any  passed  be- 
tween himself  and  A,  he  must  be  supposed  to  know,  and  there- 
fore, while  the  law  presumes  this  prima  facie,  as  a  proper  protec- 
tion to  negotiable  paper,  it  permits  the  defendant  to  rebut  the 
presumption  by  evidence. 

In  a  few  of  the  earlier  cases,  attempts  were  made  to  place  ne- 
gotiable paper  on  the  same  footing  with  instruments  under  seal, 
even  as  between  the  original  parties  ;  [q)  especially  if  it  appeared 
that  the  paper  was  intended  as  a  gift  to  the  payee. (y)     But  it  is 

(7)  Scr  (lirla  in  Pillans  v.  Van  Microp,  3  Burr.  16G3. 

(r)  Tlius,  in  Liviii;,'ston  v.  Iliistic,  2  Caincs,  246,  Liviin/ston,  J.  said  :  "  Whether  the 
mere  want  of  considOralion,  even  between  tlic  ont;inal  parties,  can  be  nllej^cd  af^auist  a 
promissory  note,  or  a  bill  of  cxclianj^c,  may  well  in;  doubted.  It  is  not  necessary,  as  in 
otlicr  simple  contracts,  to  state  a  consideration  in  the  declaration ;  the  instrument  itself 


CH.  VI.]  CONSIDERATION.  177 

now  well  settled,  that,  in  an  action  against  a  party  to  a  bill  or 
note  by  his  immediate  promisee,  a  want  or  failure  of  considera- 
tion furnishes  the  same  defence  as  in  the  case  of  any  other  parol 

imports  one,  and  in  tliis  respect  p;irt;ikes  of  the  quality  of  a  .specialty.  Nor  is  the 
plaintiff  hound  to  prove  his  givinj^  any  value  for  such  paper,  unless  when  he  sues  as 
bearer  of  a  hill  transferahle  hy  delivery,  and  that  under  suspicious  circuinstiinccs. 
Grant  v.  Vaufjhan,  3  Burr.  1516.  No  case  can  be  found  where  the  want  of  considera- 
tion alone  has  been  admitted  as  a  good  defence.  As  ajrainst  the  payee,  the  maker,  it 
is  true,  lias  been  permitted  to.show,  not  a  want,  but  a  failure,  of  consideration,  and  in 
f.U  cases  he  may  insist  on  the  illegality  of  it.  Chitty  says,  that  the  want  of  consid- 
eration may  be  relied  on,  but  not  one  of  the  decisions  which  lie  cites  will  bear  him 
out.  In  Jefferies  !».  Austin,  I  Stra.  674,  the  defendant  was  only  permitted  to  show 
the  note  was  delivered  in  the  nature  of  an  escrow,  and  it  appearing  that  the  condi- 
tion on  whicii  it  was  to  take  effect  had  not  been  performed,  a  verdict  was  found  for 
him.  Here,  the  consideration  which  had  induced  the  defendant  to  make  the  note 
failed,  but  if  he  had  given  it  to  the  plaintiff  voluntarily,  as  a  gift,  and  without  receiving 
any  value,  this  would  hardly  have  been  a  good  defence."  In  Bowers  v.  Hurd,  10  Mass. 
427,  a  woman  possessed  of  a  sum  of  money  and  desirous  of  leaving  a  legacy  to  a  friend 
to  whom  slie  thought  iierself  under  obligation,  and  desirous  also  to  avoid  the  expense 
attending  a  will,  made  a  promissory  note  payable  to  that  friend,  which  she  placed  in 
the  hands  of  a  third  person  to  be  by  him  delivered  over  to  the  promisee  after  her  decease. 
She  recognized  the  transaction  in  her  last  sickness,  and  put  into  the  hands  of  a  person 
about  her,  personal  securities  for  the  payment  of  her  debts  and  funeral  charges,  and 
especially  this  promissory  note.  It  was  lield,  that  the  promisee  was  legally  entitled 
to  the  contents  of  the  note,  in  an  action  against  the  administrator  of  the  promisor, 
her  estate  being  solvent.  Parker,  J.  said  :  "  We  do  not  admit  that,  when  one  volun- 
tarily makes  a  written  promise  to  another  to  pay  a  sum  of  money,  the  promise  can  be 
avoided  merely  by  proving  there  was  no  legal  and  valuable  consideration  subsisting  at 
the  time  ;  any  more  than,  if  he  actually  paid  over  the  amount  of  such  note,  he  can  re- 
cover it  back  again,  because  he  repents  of  his  generosity.  He  has,  indeed,  precluded 
himself  and  his  representatives  from  denying  a  consideration,  when  he  has  under  his 
hand  acknowledged  one.  That  consideration  may  not  have  been  of  a  nature  to  support 
an  iiultbitaliis  assumpsit  upon  an  implied  promise ;  but  may,  nevertheless,  have  been  a 
just  and  adequate  foundation  of  his  promise;  and  as  the  circumstances  of  the  transac- 
tion may  be  whoLU^ninknown  to  any  but  the  immediate  parties,  there  is  no  reason  for 
permitting  an  executor  or  administrator  to  dispute  what  the  deceased  never  ([uestioned 
in  his  lifetime,  and  never  intended  should  be  questioned  after  his  death.  We  are  satis- 
fied that  none  of  the  decisions  respecting  the  avoidance  of  notes  or  other  written 
promises,  for  want  of  consideration,  are  impeached  by  our  decision  in  this  case.  A 
careful  examination  will  discover,  that  in  all  those  cases  the  ground  taken  in  defence  is, 
not  that  there  was  originally  no  consideration,  contrary  to  the  express  admission  of 
the  promisor,  but  that  the  consideration  had  failed,  or  that  it  rested  in  mistake  or 
misapprehension  ;  what  the  parties  supposed  to  be  a  consideration  turning  out  in  fact 
to  be  none.  It  was  on  this  principle  that  the  case  of  Boutell  v.  Cowdin,  9  Mass.  254, 
was  decided.  In  those  cases  the  promisor  is  always  permitted,  against  the  party 
with  whom  he  contracted,  to  show  the  mistake  or  the  failure  of  what  was  supposed  to 
be  substantial.  This  does  not  contradict  his  own  acknowledgment  of  value  received, 
but  sets  up  an  equitable  claim  of  discharge,  upon  the  ground  that  both  parties  were 
deceived  in  the  contract.  Fraud,  illegality,  and  imposition  are  also  proper  defences 
Against  actions  to  enforce  such  promises,  depending  upon  other  principles."  And  see 
Vol.  I.— M 


178  NOTES   AND   BILLS.  [CH.  VL 

contract. (s)  And  if  A  makes  a  note  in  favor  of  B,  and  delivers 
it  to  B  without  consideration,  intending  it  as  a  gift,  and  after- 
wards takes  it  up  and  gives  a  new  note  instead,  this  renewed  note 
is  without  consideration. (^)     So  also  it  is  weU  settled  that  the 


Tate  V.  Hilbert,  2  Ves.  Jr.  Ill  ;  Seton  v.  Seton,  2  Bro.  Ch.  610;  Per  Parke,  B.  in 
Eastou  V.  Pratchett,  1  Cromp.  M.  &  R.  800,  and  Milues  v.  Dawson,  5  Exch.  948.  But 
see  next  note. 

(s)  Thus,  in  Holliday  v.  Atkinson,  5  B.  c&,  C.  501,  where  a  promifsory  note,  ex- 
pressed to  be  for  value  received,  was  made  in  favor  of  an  infant  a^ed  nine  years,  and 
in  an  action  upon  the  note  by  the  payee  against  the  executors  of  the  maiicr,  no  evi- 
dence of  consideration  being  given,  the  learned  judge  told  the  jury  that  tlie  note,  being 
for  value  received,  imported  that  a  good  consideration  existed,  and  that  gratitude  to  the 
infant's  father,  or  aifcction  to  the  child,  would  suffice.  Held,  that  although  the  jury 
might  have  presumed  that  a  good  consideration  was  given,  yet  that  those  pointed  out 
were  insufficient ;  and  a  new  trial  was  granted.  In  Easton  v.  Pratchett,  1  Cromp.  M. 
&  R.  798,  2  Cromp.  M.  &  R.  542,  to  a  declaration  on  a  bill  of  exchange  by  indorsee 
against  indorscr,  the  defendant  pleaded  that  he  indorsed  the  bill  to  the  plaintiff,  with- 
out having  or  receiving  any  value  or  consideration  whatsoever  for  or  in  respect  of  his 
said  indorsement ;  and  that  he,  the  defendant,  had  not  at  any  time  had  or  received  any 
value  or  consideration  whatsoever  for  or  in  respect  of  such  indorsement.  Held,  after 
verdict,  that  the  plea  was  sufficient.  In  Pearson  i'.  Pearson,  7  Johns.  26,  which  was  an 
action  by  the  payee  against  the  maker  of  a  promissory  note,  the  court  said  :  "  The 
validity  of  the  note  cannot  be  supported  upon  the  ground  taken  at  the  trial,  of  its  being 
a  gift ;  for  a  gift  is  not  consummate  and  perfect  until  a  delivery  of  the  thing  j)romised  ; 
and  until  then  the  party  may  revoke  his  jiromise.  A  parol  promise  to  pay  money,  as 
a  gift,  is  no  more  a  ground  of  action  than  a  promise  to  deliver  a  chattel,  as  a  gift.  It 
is  the  delivery  which  makes  the  gift  valid.  Donatio  perjlcitur  possessioiie  urcipientis. 
Noble  V.  Smith,  2  Johns.  52.  The  question  then  was  upon  the  delivery  and  consid- 
eration of  the  note  ;  for  if  there  was  no  consideration  for  the  note,  it  was  a  nude  pact, 
and  void  as  between  the  original  parties  to  it."  In  Fink  v.  Cox,  18  Johns.  145,  a 
father,  from  aft'ection  merely,  gave  to  his  son  a  promissory  note  for  one  thousand  dol- 
lors,  payable  to  him  or  order,  sixty  days  after  date.  In  an  action  of  assum])sit  brought 
by  the  son  against  the  executor  of  his  father,  to  recover  the  amount  of  the  note,  it  was 
held,  that  the  action  could  not  be  maintained,  for  it  was  not  a  donatio  causa  vioitis,  nor 
a  valid  gift  of  so  much  money,  but  a  mere  jjromise  to  give  ;  and  blood  or  natural  aft'ec- 
tion is  not  a  sufficient  consideration  to  supjiort  a  simple  executory  contract.  And  sec 
Schoonmaker  i;.  Roosa,  17  Johns.  301  ;  Sladc  v.  Ilalsted,  7  Cowen,  322.  In  Parish  i;. 
Stone,  14  Pick.  198,  it  was  held,  that  a  promissory  note,  made  upon  no  other  considera- 
tion than  that  of  equalizing  the  distribution  of  the  promisor's  estate  after  his  decease, 
was  without  a  sufficient  legal  consideration,  and  therefore  could  not  sujiport  an  action 
or  found  a  legal  claim.  In  Clement  v.  Reppard,  15  Pcnn.  State,  111,  it  was  held,  that 
the  consideration  of  a  promissory  note  not  under  seal,  given  for  a  balance  on  work 
done,  may  be  inquired  into  in  a  suit  between  the  original  parties,  even  though  the 
maker,  at  the  time  it  was  given,  expressed  him.sclf  satisfied  with  it,  there  being  no  evi- 
dence that,  at  the  time  of  the  settlement  or  giving  of  the  note,  any  new  consideration 
passed  from  the  p.iycc  to  the  maker.  And  .see  Barnet  v.  Offerman,  7  Watts,  130; 
Barnum  (;.  Barnuin,  9  Conn.  242  ;  Klein  v.  Keyes,  17  Misso.  326  ;  Ilayncs  v.  Thorn,  8 
Fost.  386. 

(t)  Thus,  in  Cojip  i-.  Sawyer,  6  N.  H.  386,  it  was  held,  that  where  a  promispori  notfl 


CH.  VJ.]  CONSIDERATION.  179 

donor's  own  promissory  note,  or  an  unaccepted  bill  of  exchange 
drawn  by  the  donor,  cannot  be  the  subject  of  a  dunatio  causa 
mortis. (it)  But  the  note  of  a  third  person  is  a  proper  subject  of 
such  gift,  even  without  indorsement,  and  the  donee  may  main- 
tain an  action  in  the  name  of  the  executor  or  administrator  of 
the  donor  without  his  consent. (y) 

It  is  sometimes  an  important  question,  and  one  not  always  free 
from  difficulty,  particularly  in  the  case  of  bills  of  exchange, 
whether  tlie  plaintiff  in  an  action  is  the  immediate  promisee  of 
the  defendant,  within  the  meaning  of  the  rule,  or  whether  he  is 
to  be  regarded  as  a  remote  party.  The  drawer  of  a  bill  of  ex- 
change is  the  immediate  promisee  of  the  acceptor ;  therefore,  if 
the  acceptance  was  without  consideration,  the  drawer  cannot  re- 
cover against  the  acceptor.  But  it  is  otlierwise  of  the  payee  ;  he 
is  regarded  as  a  stranger  to  the  acceptor,  in  respect  to  the  con- 


is  madd  as  a  gift,  and  intended  as  a  legacy,  no  suit  can  be  sustained  upon  it,  in  favor 
of  the  payee,  against  the  executor  or  estate  of  the  maker ;  and  where  such  note  is  exe- 
cuted and  delivered  as  a  gift,  and  afterwards  taken  up  by  the  maker,  and  a  new  note 
given  for  a  larger  amount  in  lieu  of  it,  the  latter  being  likewise  intended  as  a  gift,  the 
giving  up  of  the  first  furnishes  no  consideration  upon  which  the  latter  can  be  sustained, 
for  any  part  of  the  amount.  In  Hill  v.  Buckminster,  5  Pick.  391,  it  was  held,  that  a 
promissory  note,  expressed  to  be  for  value  received,  may  be  avoided,  as  between  the 
payee  and  the  maker,  by  proving  that  there  was  no  consideration  for  it  originally ;  and 
a  note  given  in  renewal  of  one  so  voidable  is  likewise  without  consideration.  Parker, 
C.  J.  said  :  "  In  coming  to  this  conclusion,  we  undoubtedly  overrule  some  of  the  ex- 
pressions in  the  opinion  as  reported  in  the  case  of  Bowers  v.  Hurd,  10  Mass.  427, 
though  the  case  itself  was  rightly  decided  upon  other  principles.  It  is  in  that  opinion 
stated  that  to  a  promissory  note,  in  wliich  value  is  acknowledged  to  have  been  received, 
it  cannot  be  objected  in  defence,  between  the  original  parties,  that  there  was  no  existing 
consideration  when  the  promise  was  made,  though  it  would  be  competent  to  show  that 
the  consideration  had  failed  or  that  it  was  illegal.  But  further  opportunity  to  examine 
the  cases  has  convinced  us  that  the  opinion  so  expressed  is  untenable  ;  there  being  cases 
in  the  English  and  other  books,  which  are  cases  clearly  of  defence  founded  upon  no 
consideration,  rather  than  a  failure  of  one  once  existing.  This,  though  contrary  to  the 
usual  principle  of  holding  a  party  to  his  acknowledgment,  must  be  considered  as  the 
law,  and  we  cannot  depart  from  it,  however  disingenuous  such  defences  generally  ap- 
pear to  be."  And  see  Geiger  v.  Cook,  3  Watts  &  S.  266.  In  Dawson  v.  Kearton,  3 
Smale  &  G.  186,  a  different  opinion  is  intimated. 

(n)  Harris  v.  Clark,  2  Barb.  94,  3  Comst.  93  (overruling  Wright  y.  Wright,  1  Cow- 
en,  ,598) ;  Parish  v.  Stone,  14  Pick.  198  ;  Smith  v.  Kittridge,  21  Vt.  238  ;  Raymond  v. 
Sellick,  10  Conn.  480;  Holly  v.  Adams,  16  Vt.  206;  Craig  v.  Craig,  3  Barb.  Ch.  76; 
Klint  V.  Puttee,  33  N.  H.  520.  See  contra,  Jones  v.  Deyer,  16  Ala.  221  ;  Coutant  v. 
Schuyler,  1  Paige,  316;  Bowers  v.  Hurd,  10  Mass.  427  ;  Woodbridge  v.  Spooner,  1 
Chitty,  661  ;  Seton  v.  Seton,  2  Bro.  Ch.  610;  Wells  v.  Tucker,  3  Binn.  366. 

(w)  Bates  V.  Kemcton,  7  Gray,  382. 


ISO  NOTES  AXD   BILLS.  [CH.  VI. 

sideratioA  for  the  acceptance.  Consequently,  if  the  acceptance 
is  absolute  in  its  terms,  and  the  bill  is  received  by  tlie  payee  in 
good  faith  and  for  value,  it  is  no  ans^ver  to  an  action  by  him,  that 
the  defendant  received  no  consideration  for  his  acceptance,  or  that 
the  consideration  therefor  has  failed.  And  it  is  imtuaterial  for 
this  purpose,  whether  the  bill  is  accepted  while  in  the  hands  of 
the  drawer,  and  at  his  request,  or  has  passed  into  the  hands  of 
the  payee  before  acceptance,  and  is  accepted  at  his  request,  (z^;) 

Uv)  Robinson  v.  Reynolds,  2  Q.  B.  196.  In  assumpsit  by  indorsee  of  a  bill  of  ex- 
change against  acceptors,  defendants  pleaded  that  K.,  the  drawer,  was  in  tlie  habit  of 
delivering  goods  to  C.  to  be  carried  by  him  to  Liverpool,  consigned  and  deliverable 
there  to  K.'s  order,  and  on  so  doing,  of  receiving  from  C  a  receipt  for  the  goods,  bill 
of  lading,  or  document,  which,  by  the  custom  of  merchants,  when  indorsed  for  value, 
passed  the  property  in  the  goods,  and  entitled  the  indorsee  to  have  them  delivered  to 
him.  That  K.  used  to  obtain  advances  from  plaintiff  on  indorsing  to  plaintiiF  such 
document,  and  drawing  and  delivering  to  him  a  bill  of  exchange  on  defendants  (who 
traded  at  Liverpool  as  purchasers  and  commission  agents  of  such  goods  as  K  delivered 
to  C),  if  the  goods  were  deliverable  to  defendants,  or  on  some  otiicr  person  to  whom 
they  were  deliverable.  That  plaintiff  used  to  forward  the  indorsed  document  to  Liver- 
pool, and  to  have  it  presented  to  defendants  (or  such  other  person),  and,  on  the  faith 
thereof,  and  at  plaintiff's  request,  and  in  consideration  of  such  security  on  the  goods, 
defendants  (or  such  other  person)  used  to  accept  the  bill  of  exchange;  of  all  which 
plaintiff  had  notice.  That  K.,  pretending  to  act  in  pursuance  of  such  usage,  fraudu- 
lently indorsed  and  delivered  to  plaintiff  a  document  in  the  usual  form,  to  wliich  C.'s 
signature  was  forged,  pretending  that  it  was  genuine,  and  that  the  goods  mentioned  in 
it  had  been  delivered  to  C,  which  was  false ;  and  K ,  at  the  same  time,  indorsed  the 
bill  of  exchange  to  plaintiff",  who  advanced  K.  the  amount  on  the  faith  of  the  document. 
That  plaintiff  indorsed  the  document,  and  had  it  presented  to  defendants,  with  tlic  bill 
of  exchange,  and  requested  them  to  accept  the  bill  of  exchange  on  the  faith  of,  and  in 
consideration  of  the  delivery  of,  the  document,  and  delivered  the  document  to  them  as 
a  true  one.  That  defendants,  in  consideration  of  the  goods  mentioned  in  the  document, 
and  confiding  and  relying  on,  and  in  consideration  and  on  the  faith  of,  the  document, 
and,  in  ignorance  of  its  being  forged,  acce])ted  tiie  l)ill  of  exchange  for  and  at  the  re- 
quest of  ])laintiff.  Tiiat  so  the  consideratiun  for  the  acceptance,  which  defendants  had 
been  indu<ied  to  make  under  the  mistake  into  which  they  had  been  led  by  the  said  con- 
duct and  indorsenjcnt  of  plaintiff,  wholly  failed  ;  and  that  there  never  was  any  other 
consideration  for  tiio  acceptance.  The  plea  did  not  allege  that  plaintifT  knew  the  docu- 
ment to  be  forged,  or  represented  it  to  be  genuine.  //"/</,  by  the  Court  of  Queen's 
Bench,  on  motion  for  judgment  twn  obstante  vencUcto,  to  be  a  bad  plea.  Judgment  of 
the  Queen's  Bench  affirmed  in  the  Exchequer  Chajnber.  Tindul,  C.  J.,  in  delivering 
the  judgment  of  the  court  in  the  Exdicqiier  Chamber,  said :  "  The  sole  ground  on 
whi(;h  the  defendant  relies  is,  that  the  acceptance  was  not  binding  on  account  of  tho 
total  faihire  or  insufficiency  of  the  consideration  for  wliich  it  was  given,  tlie  document, 
on  tlic  delivery  of  which  the  acceptance  wa.s  given,  iiaving  been  forged,  and  tlierc  never 
having  lieen  any  other  consideration  whatsoever  for  tlic  acceptance  of  the  defendants. 
And  tins  would  have  been  a  good  answer  to  tlic  action,  if  the  bank  had  been  the  drawers 
of  the  bill.  But  tho  bank  are  indorsees,  and  indorsees  for  value ;  and  tlie  failure  or 
want  of  consideration  between  them  and  the  acceptors   constitutes  no  defence ;  nor 


en.  Vf.]  CONSIDERATION.  181 

It  would  seem,  also,  that  the  question  is  not  always  conclusive- 
ly determined  by  the  form  of  the  instrument.  For,  although  it 
sliould  appear,  on  the  face  of  the  bill  sued  on,  that  the  plaintiff" 
was  the  immediate  promisee  of  the  defendant,  the  plaintiff  may 
show  that  he  was  not  so  in  fact ;  but  that  the  bill  came  to  him 
througli  other  hands.  Thus,  the  payee  is  in  general  the  immedi- 
ate promisee  of  the  drawer ;  and,  in  an  action  by  the  former 
against  the  latter,  a  want  or  failure  of  consideration  for  drawing 
the  bill  is  a  good  defence.  But  if  A,  in  New  York,  being  in- 
debted to  B,  in  London,  procures  C,  in  New  York,  to  draw  a  bill 
on  London  in  favor  of  B,  and  remits  the  same  to  B  in  payment 
of  his  debt,  the  liability  of  C  to  B  will  be  absolute,  whether  C 
received  any  consideration  from  A  or  not.  For  the  transaction 
is  the  same  in  substance,  as  if  the  bill  had  been  drawn  in  favor 
of  A,  and  by  him  indorsed  to  B  ;  and  in  that  case,  in  an  action 
by  B  against  C,  there  could  of  course  be  no  inquiry  into  tiie  con- 
sideration between  0  and  A.(.t)     But  if  A  were  the  mere  agent 


would  the  want  of  consideration  between  the  drawer  and  acceptors  (whicli  must  be 
considered  as  included  in  the  general  averment  that  there  was  no  consideration),  unless 
they  took  the  bill  with  notice  of  the  want  of  consideration,  which  is  not  averred  in  this 
plea.  Admitting  that  the  bill  was  accepted  by  the  drawee  at  the  request  of  the  bank, 
and  on  a  consideration  which  turns  out  to  be  utterly  worthless,  the  case  is  the  same  as 
if  the  bill  had  been  accepted  without  any  value  at  all  being  given  by  the  bank  to  the 
defendants  ;  and,  on  that  supposition,  the  defendants  would  still  be  lial)le  as  acceptors 
to  the  bank,  who  are  indorsees  for  value,  unless  not  only  such  want  of  consideration 
existed  between  the  drawer  and  acceptors,  hut  unless  the  indorsees  had  notice  or  knowl- 
edge thereof.  For  the  acceptance  binds  the  defendants  conclusively,  as  between  them 
and  every  bona  fide  indorsee  for  value.  And  it  matters  not  whether  the  bill  was 
accepted  before  or  after  such  an  indorsement.  Consistently  with  every  averment  in  the 
plea,  the  bill  may  have  been  accepted  on  the  credit  of  the  drawer,  or  for  his  accommo- 
dation ;  and  the  plaintiff  would  then  unquestionably  have  a  right  to  sue,  having  given 
full  value  for  it."  The  plaintiff  is  spoken  of  in  this  case  as  an  indorsee.  The  bill  was 
in  fact  drawn  to  the  order  of  the  drawer,  and  by  him  indorsed  to  the  plaintiff.  Tho 
plaintiff,  therefore,  was  substantially  the  payee.  Besides,  an  indorsee,  who  takes  a 
bill  before  it  is  accepted,  is  as  much  an  immediate  party  to  the  acceptance  as  the  payee. 

(x)  Munroe  v.  Bordier,  8  C.  B.  862.  In  this  case  it  was  held,  that  where  the  purchaser 
or  remitter  in  London  of  a  foreign  bill  gets  from  the  drawer,  according  to  the  usage  in 
London,  credit  until  the  next  foreign  post-day  for  the  amount,  and  delivers  the  bill  to 
the  payee,  who  receives  it  hona  fide  and  for  value,  the  drawer  is  liable  for  the  amount 
to  the  payee,  although,  in  consequence  of  the  purchaser  or  remitter's  failure  before  the 
next  foreign  post-day,  the  drawer  never  receives  value  for  it.  The  declaration  stated 
that  A  (the  defendant)  made  a  bill  of  exchange,  and  directed  it  to  B,  a 'merchant  in 
France,  requiring  him  to  pay  the  amount  to  the  order  of  C  (the  ]>laintiff) ;  that  A 
delivered  the  bill  to  D,  who  delivered  it  to  C;  and  that  B  refused  payment,  &c.  A 
oleaded  that  he  made  and  delivered  the  bill  to  D  for  the  use  of  C,  on  the  f;\ith  and 

VOL.   I.  16 


18"2  NOTES   AND    BILLS,  [CH.  VL 

of  B,  any  defence  which  would  be  good  against  him  would  also 
be  good  against  B.(^)     If  a  note,  payable  to  B,  is  indorsed  by 

terms  of  being  paid  the  price  and  value  thereof  according  to  the  usage  of  merchants  in 
that  behalf,  that  is  to  say,  on  the  next  foreisjn  post-day  ;  that  neither  C  nor  any  other 
person,  then  or  at  any  time  before  or  since,  paid  him  the  said  price  or  value  of  the  bill, 
or  any  part  thereof;  that  he  never  had  any  value  or  consideration  for  the  making  or 
delivery  of  the  bill ;  and  that  C  always  held  and  still  held  the  same  without  any  value 
or  consideration  whatever  to  him  (A)  for  the  same.  Replication,  that,  after  the  mak- 
ing of  the  bill  and  before  it  became  due,  D,  who  appeared  to  be,  and  whom  C  believed 
to  be,  the  lawful  holder,  delivered  the  bill  to  him  for  a  good  and  valuable  consideration, 
and  without  notice  of  the  premises  in  the  plea  mentioned.  Held,  that  the  plea  was  no 
answer  to  the  action  ;  and  that,  even  if  it  were  sufficient  to  call  upon  0  to  show  bona 
Jidi's,  he  did  so  by  his  replication.  Wilde,  C.  J.  said :  "  The  writers  upon  foreign  bills 
contemplate  the  existence  of  four  parties,  —  the  giver  of  value,  or  purchaser  of  the  bill, 
or  remitter,  as  he  is  often  called,  —  the  drawer,  —  the  party  to  whom  the  bill  is  to  be 
paid  abroad,  —  and  the  drawee.  The  ordinary  course  of  dealing  with  reference  to  for- 
eign bills,  as  described  by  them,  begins  by  the  sale  of  the  bill  by  the  drawer  to  some 
person  other  than  the  payee ;  it,  therefore,  does  not  contemplate  that  the  consideration 
for  the  bill  should  necessarily  move  from  the  payee  to  the  drawer,  or  that  no  person  but 
the  drawer  should  have  a  right  to  confer  a  title  to  the  bill  upon  the  payee.  See  Bcawes's 
Lex  Mcrcatoria,  Bills  of  Exchange,  par.  6,  p.  416  (452),  citing  Marius,  p.  22.  And  in 
par.  14,  p.  418  (4.53),  he  says:  'In  case  of  a  remitter's  failing  before  he  has  paid  the 
value,  and  the  person  on  whom  the  bill  is  drawn  gets  advice  of  this  occuiTcnce  befora 
acceptance,  and  therefore  refuses  to  accept  it,  the  bill,  on  its  returning  protested,  shall  be 
paid,  notwithstanding,  with  all  charges,  by  the  drawer,  under  proof  l)y  tlie  possessor  that 
he  negotiated  the  said  bill,  and  paid  a  just  value  for  it.'  According  to  that  rule,  the 
plaintiffs  would  in  this  case  be  entitled  to  recover;  for  the  plea  docs  not  deny  that  thcv 
gave  a  just  value  for  the  bill.  Again,  in  par.  15,  Beawes  states  tlie  law  to  be,  that 
where  the  drawer  gives  credit  to  the  remitter,  without  advising  his  princijial  thereof, 
if  the  remitter  does  not  pay  the  money,  the  drawer  shall  sutler  the  loss.  Here,  it  is  not 
shown  by  the  plea,  that  the  bill  was  handed  to  the  plaintiffs  before  tlie  next  ])Ost-day,  — 
and,  for  tiie  reasons  above  given,  it  seems  to  be  immaterial  whether  it  was  handed  over 
before  or  after  that  day,  — nor  that  the  drawers  ever  gave  notice  to  tlie  payees  that  the 
price  had  not  been  duly  paid.  They  may,  therefore,  bo  considered  to  have  given  credit 
to  the  remitter.  It  appears  to  us,  then,  that,  on  this  declaration  and  plea,  it  must  be 
taken  that  Coatcs  &  Co.  were  the  jjurchascrs  of  the  bill  in  question  ;  and  that  the 
drawers  placed  it  in  their  hands  with  a  contiolling  power  over  it,  giving  them  credit 
for  a  certain  time  for  the  purchase-money;  and  that  they  delivered  it  to  the  payees, 
who  received  it  boria  Jide  and  for  value ;  for  no  fraud  is  alleged,  and  value  as  between 
Coates  &  Co.  and  the  plaintiffs  is  not  denied.  Under  such  circumstances,  wc  are  of 
opinion  that  the  plaintiffs  acquired  a  good  title  to  the  bill,  and  may  sue  the  drawers 
upon  it,  although  they  have  never  received  value  for  it.  Suppose  tlie  bill  had  been 
given  to  Coates  &  Co.  for  their  accommodation,  or  a  promissory  note  had  been  given 
to  them,  made  payable  to  the  plaintiffs,  in  order  that  they,  Coates  &  Co ,  might  borrow 
money  ujion  it,  or  hand  it  over  to  the  payees  in  dlscliargc  of  a  debt,  surely  tlic  payees, 
in  eitiier  ca.se,  might  sue  upon  the  instrument,  without  proving  the  giving  of  value  to 
the  drawer  or  maker.  The  want  of  sucii  value  could  not  be  relied  ujion  as  an  answer 
to  the  action,  on  iIk;  ground  of  the  contract  between  the  inimediatc  parties  to  the  iiistra- 
meiit  bring  nndniii  jidctitm" 

(ij)  I'uget  de  Bras  v.  Forbes,  1  Esp.  1 17.     The  plaintiff  in  this  case  was  a  foreigner. 


CH.  VI.]  CONSIDERATION.  183 

him  ill  blank  and  delivered  to  C,  and  after  passing  througli  sev- 
eral hands  comes  into  the  possession  of  D,  who  receives  it  in 
good  faith  and  for  a  valnable  consideration,  and  fills  up  the  l)lank 
indorsement  directly  to  himself,  and  brings  an  action  against  the 
maker ;  it  is  no  answer  to  this  action  to  say,  that  the  note  was 
made  and  delivered  to  B  without  consideration,  and  by  him  in- 
dorsed without  consideration.  For  although  D  appears  on  the 
face  of  the  note  to  be  the  immediate  indorsee  of  B,  and  deduces 
his  title  as  such,  he  is  not  so  in  fact. (2;)  So  if  A,  for  a  valuable 
consideration  moving  from  C  to  him,  should  procure  B  to  make 
his  note  in  favor  of  C,  it  should  seem  that  it  would  be  no  answer 
to  an  action  by  C  against  B,  that  the  latter  received  no  considera- 
tion for  making  the  note. (a)  So  if  A,  for  a  good  consideration 
moving  from  B  to  him,  authorizes  B  to  draw  upon  C  to  a  certain 
amount,  on  A's  account,  and  B  draws  accordingly,  and  C  accepts, 
C  will  be  as  absolutely  bound  by  his  acceptance  to  B,  the  drawer, 
as  to  any  subsequent  bona  fide  holder  for  value. (6) 

A  defendant  may,  in  general,  make  the  defence  of  a  want  of 
consideration  against  a  remote  party,  if  he  could  have  made  it 
against  a  nearer  party,  and  the  remote  party  took  the  paper  from 
the  nearer  party  with  a  knowledge  that  it  was  open  to  this  de- 
fence. But  a  very  important  exception  to  this  rule  prevails  in 
the  case  of  accommodation  paper,  (c)     The  plain  reason  of  this 


residing  in  Holland  ;  and,  having  a  large  sum  of  money  in  England  in  the  funds,  em- 
ployed ihe  house  of  Agassiz,  Rougemont,  «&  Co.  as  his  agents,  to  sell  it  out,  and  to 
retnit  it  to  him  in  hills  on  Holland.  Agassiz,  Kougcmont,  &  Co.  applied  to  the  defend- 
ants for  the  purpose,  and,  on  the  seventeenth  of  Fehruary,  1792,  got  from  them  bills  on 
Holland,  in  favor  of  the  plaintiff  It  was  proved  to  be  the  custom  of  London,  for  per- 
sons in  the  habit  of  remitting  foreign  bills,  to  give  the  bills  on  one  day,  but  not  to  re- 
ceive the  money  for  them  until  the  next  post-day.  In  this  case  the  next  post-day  was 
Tuesday,  the  twenty-first.  On  Monday,  the  twentieth,  the  house  of  Agassiz,  Rouge- 
mont, &  Co  stopped  payment,  so  that  the  defendants  in  fact  had  never  received  any 
value  for  the  bills  which  they  had  so  drawn  on  Holland  in  favor  of  the  plaintiff;  and 
they  having  ordered  their  correspondent  abroad  not  to  pay  the  hills  when  due,  this 
action  was  brought  against  them  as  drawers  of  the  bill.  Held,  that  the  defendants 
were  not  lialile.     But  see,  as  to  this  case,  Poirier  v.  Morris,  2  Ellis  &  B.  89. 

(z)  Arhouin  v.  Anderson,  1  Q.  B.  498. 

(a  Sec  per  ^^ikle,  C.  J.,  in  Munroe  v.  Bordier,  supra,  p.  181,  note  x ;  Horn  v.  Fuller, 
6  N.  H.  ."ill  ;  Glascock  1;.  Rand,  14  Misso.  550  But  see  Rogers  v.  Morton,  12  Wend. 
484,  14  Wend.  575  ;  Nelson  v.  Cowing,  6  Hill,  336. 

(b)  See  Pilhins  v.  Van  Mierop,  3  Burr.  1663. 

(c)  In  Smith  r.  Knox,  3  Esp.  46,  Lord  Eldon  said  :  "  If  a  person  gives  a  bill  of  ex- 
ctiauge  for  a  particular  purpose,  and  that  is  known  to  the  party  who  takes  the  bill ; 


184  NOTES   AND   BILLS.  [CH.    Yl. 

is,  that  the  accommodation  maker,  acceptor,  or  indorser  intends 
to  lend  his  credit,  and  does  it  as  a  favor  to  some  party  wlio  pays 
him  nothing.  This  party,  therefore,  can  never  sne  him,  or  if  he 
does,  the  want  of  consideration  will  be  a  perfect  defence.  But 
if  this  accommodated  party  uses  the  credit  he  has  borrowed  by 
selling  the  note  or  getting  it  discounted,  the  holder  may  say,  "  I 
bought  the  note  or  discounted  it  for  the  very  reason  that  1  knew 
you  had  lent  your  credit  on  it,  and  I  took  it  on  the  faith  of  your 
credit."  We  must,  therefore,  understand  the  legal  definition  of 
an  accommodation  party  to  negotiable  paper  to  be  one  who  puts 
his  name  there  without  any  consideration,  with  the  intention  of 
lending  his  credit  to  the  accommodated  party.  It  seenih  that  a 
note  intended  by  the  maker  as  a  gift  to  the  payee  would  be  gov- 
erned by  the  same  principles  as  an  accommodation  note.  The 
maker,  as  we  have  seen,  would  have  a  defence  as  against  the 
payee ;  but  he  would  have  none,  we  think,  as  against  a  subse- 
quent liolder  for  a  valuable  consideration,  though  such  holder 
received  the  note  with  knowledge  of  the  circumstances  under 
which  it  was  given. 

The  possession  of  a  negotiable  note  is  prima  facie,  evidence  of 
the  right  of  the  holder,  and  also  of  the  fact  that  tiie  holder  gave 
value  for  it.(c/)  This  latter  question  is  often  very  imi)ortant. 
The  opinion  seems  to  have  prevailed  at  one  time,  that  in  an  ac- 
tion by  an  indorsee  against  a  maker  or  against  a  remote  indorser, 
if  tlie  defendant  could  show  that  for  any  cause  the  action  could 


as,  for  example,  if  to  answer  a  particular  demand,  then  the  party  taking  tlie  hill  cannot 
apply  it  to  a  different  purpose  ;  hut  wliere  a  hill  is  given  under  no  such  rcstrii'tion,  hut 
given  merely  for  the  accommodation  of  the  drawer  or  payee,  and  that  is  sent  into  the 
world,  it  is  no  answer  to  an  action  hrought  on  that  hill,  that  the  defendant,  the  acceptor, 
aece])ted  it  for  the  accommodation  of  tiie  drawer,  and  that  that  fact  was  known  to  the 
holder ;  in  such  case  the  holder,  if  he  gave  a  honajide  consideration  for  it,  is  entitled  to 
i-ecover  the  amount,  though  he  had  full  knowledge  of  the  transaction."  So  in  Brown 
V.  Mott,  7  Johns.  361,  where  a  note  was  indorsed  for  the  accommodation  of  the  maker, 
and  without  consideration,  it  was  held,  that  tiie  indorser  was  liahlc  for  the  amount,  after 
ilue  notice  of  non-payment,  though  the  plaintiff  knew  at  the  time  he  took  the  note  that 
the  indorser  had  received  no  consideration  ;  hut  if  there  is  fraud  in  the  case,  and  that 
known  to  the  plaintiff,  the  indorser  may  show  it  in  defence.  So  in  (Irant  v.  ICllicott,  7 
Wend  227,  it  was  hdd,  that  it  is  no  defence  in  an  action  on  a  hill  of  exchange  hy  the 
payee  against  the  acceptor,  that  the  liiil  was  accepteil  without  consiihTation,  or.  in  other 
words,  was  an  accommodation  acceptance,  and  that  fact  known  to  the  payee. 

(d)   llcCaskill  V.  Ilallard,  8  \\'u\\.  470;   King  v.  Milsom,  2  Camp  .5;  Collins  v.  Ma» 
tin,  1  B.  &  r.  G48 ;  Minell  v.  Keed,  26  Ala.  730.     And  sec  the  next  note 


CH.  VI.]  CONSIDERATION.  185 

not  have  been  maintained  by  the  plaintiff's  immediate  indorser. 
this  would  throw  upon  the  plaintiff  the  burden  of  proving-  that 
he  received  the  note  for  a  valuable  consideration. (e)  But  latterly 
a  distinction  has  been  taken ;  and  it  is  now  held  that  mere  proof 


(e)  Heatli  v.  Sansoin,  2  B.  &  Ad.  291.  In  this  case  S.,  being  indebted  to  a  firm  in 
whieh  he  was  partner,  j^ave  a  note  in  the  name  of  another  firm  to  which  lie  also  belonged, 
in  diseiiarge  of  his  individual  debt.  The  payees  indorsed  it  over,  and  the  indorsee 
sued  tlic  parties  who  appeared  to  be  makers.  Jhld,  that  this  note  was  made  in  fraud 
of  S.'s  partner  in  the  seeond  firm,  and  could  not  he  enforced  against  him  by  the 
payees,  and  that,  at  least  under  these  circumstances  of  suspicion,  the  indorsee  could 
not  recover  without  proving  that  he  took  the  note  for  value.  Held  also,  Parke,  J.  dis- 
senting, that  in  all  cases  where,  from  defect  of  consideration,  the  original  payees  can- 
not recover  on  the  note  or  l)ill,  the  indorsee,  to  maintain  an  action  against  the  maker  or 
acceptor,  must  prove  consideration  given  by  himself  or  a  prior  indorsee.  Lord  Tenter- 
dm  said  :  "  The  question  is,  whether,  in  order  to  succeed  in  this  action  against  the  de- 
fendant Evans,  the  jilaintitf  was  bound,  under  the  circumstances  of  the  case,  to  prove 
a  consideration  for  the  indorsement.  According  to  the  more  recent  practice,  I  think  it 
was  incumbent  on  him  to  do  so ;  and  this  is  a  stronger  case  than  the  ordinary  one,  in 
which  indorsees  have  been  put  to  prove  value  given  by  reason  of  the  circumstances 
under  which  an  acceptance  or  note  was  obtained,  because  liere  the  indorsee  chooses  to 
bring  his  action  against  makers,  who  are  unknown  to  him,  rather  than  sue  the  indorsers, 
whom  he  knows,  and  from  whom  he  took  the  note."  Litdtdule,  J. :  ''  It  has  been  fre- 
quently held,  that  where  a  note  or  acceptance  of  a  bill  has  been  obtained  by  fraud,  loss 
out  of  the  owner's  hands,  or  duress,  the  indorsee  is  bound  to  show  that  he  gave  value, 
and  in  some  instances  even  that  he  became  holder  bona  Jide,  and  not  under  circum- 
stances of  suspicion.  It  may  be  laid  down  as  a  general  rule,  that  if  the  note  or  accept- 
ance were  taken  under  such  circumstances  that  the  indorser  himself  could  not  recover, 
the  indorsee  must  prove  that  he  became  so  for  a  good  consideration,  though  no  notice 
be  given  him  to  jjroduce  such  evidence.  There  is  no  more  hardship  in  the  necessity  of 
proving  consideration  here  than  in  ordinary  actions  on  simple  contract,  where  the  plain- 
tifi^'  must  be  prepared  to  show  a  consideration  if  necessary,  though  in  the  great  majority 
of  instances  no  such  necessity  arises.  It  may  be  said,  that  the  rule  now  laid  down  is 
inconvenient,  as  restraining  the  negotiability  of  notes  and  bills;  but  this  is  fully  coun- 
terbalanced by  the  inconvenience  which  would  arise  on  the  other  hand,  if  a  party  who 
could  not  himself  sue  on  a  note  or  acceptance  could  put  it  into  the  hands  of  a  third 
person,  and,  in  consequence  of  such  transfer,  the  proof  of  value  given  should  be  dis- 
pensed with.  The  present  case  is  stronger  than  the  ordinary  one,  of  a  bill  accepted 
for  accommodation,  because  here  some  little  susjjicion  arises  from  the  note  being  in- 
dorsed over  l)y  the  Droitwich  Company,  and  the  action  then  brought  against  the 
maker."  Parke,  J. :  "  I  am  of  the  same  opinion  on  the  special  circumstances  of  this 
case  ;  but  I  have  always  under.-itood  that  an  indorsement  must  be  taken,  prima  facie,  to 
have  been  given  for  value,  and  that  the  proof,  at  least  of  circumstances  tending  to  throw 
suspicion  on  such  indorsement,  lies  on  the  party  disputing  its  validity  before  the  in- 
dorsee can  be  called  upon  to  prove  that  he  gave  value  for  the  bill.  This  doctrine 
appears  to  me  to  be  correctly  laid  down  by  Ei/re,  C.  J.,  in  Collins  v.  Martin,  1  B.  &  P. 
648.  When  the  note  or  acceptance  has  been  obtained  by  felony,  by  fraud,  or  by  duress, 
it  has  been  usual  to  require  jiroof  of  valuable  consideration  on  the  part  of  the  indorsee; 
and  I  do  not  dispute  the  jiropriety  of  that  usage,  as  any  one  of  those  facts  raises  sorne 
suspicion  of  the  title  of  the  holder.  But  I  am  by  no  means  satisfied  that  the  same  rule 
IG* 


180  NOTES   .\ND   BILLS.  [CH.  TI 

that  tliere  was  no  consideration  for  the  note  between  the  original 
parties,  as  that  it  was  an  accommodation  note,  or  was  intended 
aa  a  gift,  or  was  given  for  a  supposed  balance  due  to  the  payee 
when  in  fact  there  was  no  such  balance  due,  or  was  given  for 
what  the  parties  erroneously  supposed  to  be  a  sufficient  consid- 
eration, will  not  make  a  prima  facie  case  for  the  defendant.  (/) 


can  be  applied  to  all  cases  where  an  acceptance  or  note  has  been  given  without  consid- 
eration. I  think  tliis  is  a  very  important  question.  It  is  difficult  to  reconcile  the  recent 
practice  (for  it  is  only  recent)  with  principle  ;  for  the  simple  fact  of  want  of  considera- 
tion between  the  acceptor  and  drawer,  or  maker  and  payee,  affords  no  inference  that 
the  holder  received  the  bill  or  note  mala  Jide,  or  without  consideration.  It  is,  besides, 
a  practice  likely  to  produce  great  increase  of  expense,  as,  in  every  instance,  a  plaintiff, 
who  is  indorsee,  can  hardly  be  safe,  without  being  prepared  to  prove,  as  to  some  one  at 
least  of  the  indorsements,  that  value  was  given  for  it ;  and  this  inconvenience  may  out- 
weigh that  of  casting  upon  the  defendant  the  burden  of  making  out  a  case  of  suspicion 
against  the  indorsee,  before  proof  or  consideration  can  be  required  from  him."  Patte- 
son,  J. :  "  As  at  present  advised,  I  think  the  general  rule  of  practice  on  this  subject  has 
been  correctly  stated,  and  that,  where  a  note  or  acceptance  has  been  given  under  such 
circumstances  that  the  original  payee  could  not  recover  on  it,  the  indorsee  may  fairly 
be  called  upon  to  show  how  it  came  to  his  hands,  and  is  not  entitled  to  a  previous 
notice.  And,  therefore,  independently  of  the  circumstances  of  suspicion  in  this  case,  I 
should  think,  upon  the  point  of  practice  alone,  this  rule  ought  to  be  made  absolute." 
Prior  to  this  decision,  the  rule  was  very  uncertain.  See  Paterson  v  Ilardacre,  4  Taunt. 
114;  Duncan  v.  Scott,  1  Camp.  100;  Rces  v.  Marquis  of  Ileadfort,  2  Camp.  .574; 
Reynolds  v.  Chettle,  2  Camp.  596  ;  Lawson  v.  Weston,  4  Esp.  .56;  Thomas  v.  New- 
ton, 2  C.  &  P.  606  ;  Dolauncy  v.  Mitchell,  1  Stark.  439  ;  Bassett  v.  Dodgiii,  10  Bing. 
40;  Mann  t".  Lent,  Moody  &  M.  240,  10  B.  &  C  877  ;  Humbert  iv  Huding,  Chitty 
on  Bills,  9th  cd.,  651;  Spooner  i'.  Gardiner,  Ryan  &  M.  84;  Browne  i-.  Murray, 
Ryan  &  M.  254.  And  see  the  Reporter's  note  to  this  case.  In  the  later  case  of  Simp- 
son V.  Clarke,  2  Cromp.  M.  &  R.  342,  the  question  was  much  considered,  and  the 
court  were  strongly  inclined  to  agree  with  the  opinion  of  the  majority  of  the  judges  in 
Heath  v.  Sansom. 

(/)  This  rule  was  first  laid  down  by  Parke,  J.,  in  Heath  i\  Sansom,  supra.  In 
Whittakcr  v.  Edmunds,  1  Moody  &  R.  366,  in  an  action  by  the  third  indorsee  against 
the  acceptor  of  a  bill  of  exchange,  it  was  ruled  at  Nisi  Priiis  that  the  mere  absence  of 
consideration  for  the  acceptance  and  prior  indorsements  did  not  throw  the  omis  upon 
the  plaintiff  of  proving  the  consideration  of  the  indor.sement  to  him,  where  no  circum- 
stances of  fraud  or  illigality  ajjpeared.  Pattcson,  J.  said  :  "  I  am  of  ojiinion  that  the 
evidence  proposed  to  be  offered  by  the  defendant  will  not  nuikc?  it  necessary  for  tho 
plaintiff  to  prove  the  consideration  which  he  gave  for  the  bill.  Since  the  decision  of 
Heatii  V.  Sansom,  the  consideration  of  the  judges  has  been  a  good  deal  called  to  tlio 
subject;  and  the  prevalent  opinion  amongst  them  is,  that  tlie  courts  have  of  late  gono 
too  far  in  restricting  the  negotiability  of  bills  and  notes.  If,  indeed,  the  defendant  can 
show  that  there  has  been  something  of  fraud  in  the  previous  stops  of  the  transfer  of  the 
instrument,  that  tlirows  upon  the  plaintiff  the  necessity  of  showing  under  what  circum- 
stances lie  became  jjosses.sed  of  it.  So  far  I  accede  to  the  case  of  Heath  v.  Sansom  ; 
for  there  were  in  that  ca.xc  circumstances  raising  a  suspicion  of  fraud  ;  but  if  I  add<'d, 
on  that  occasion,  tliat,  even  indeijcndently  of  these  circumstances  of  suspicion,  the  holder 


CII.  VI.]  CONSIDERATION.  187 

The  law  will  still  presume  that  the  plaintiff  received  the  note  for 
value.  The  same  rule  prevails  when  the  note  was  given  origi- 
nally for  a  good  consideration,  but  which  has  since  totally  or  par- 


woiild  liave  been  bound  to  show  the  consideration  which  he  gave  for  the  bill  merely 
because  there  was  an  absence  of  consideration  as  between  the  previous  parties  to  the 
bill,  I  r.m  now  decidedly  of  opinion  that  such  a  doctrine  was  incorrect."  In  Mills  v. 
Barber,  1  M.  &  W,  425,  which  was  assumpsit  by  the  indorsee  against  the  acceptor  of  a 
bill  of  exchange,  the  defendant  pleaded  that  he  accepted  the  bill  for  the  accommodation 
of  tiie  drawer,  and  that  the  drawer  did  not  give,  nor  did  the  defendant  receive,  any 
consideration  for  his  accepting  or  paying  the  bill ;  that  the  drawer  indorsed  the  bill  to 
the  plaintitf  without  any  consideration,  and  that  the  plaintiff  held  the  bill  without  con- 
sideration. Keplication,  that  the  drawer  indorsed  the  bill  to  the  plaintiff  for  a  good 
and  valuable  consideration.  Iltlcl,  that  it  was  not  incumbent  on  the  plaintiff  to  begin 
and  prove,  in  the  first  instance,  that  he  gave  value  for  the  bill ;  but  that  the  rule  is 
otherwise,  wiiere  the  title  of  the  holder  is  impeached  on  the  ground  of  fraud,  duress,  or 
that  the  bill  has  been  lost  or  stolen.  Lord  Abirufer  said:  "No  doubt  the  rule  of  law 
is,  that  where  a  plaintiff  has  not  given  consideration  for  a  bill  of  exchange,  for  which 
uo  consideration  has  been  previously  obtained,  he  cannot  recover  upon  it.  But  the 
doubt  is  as  to  which  party  is  required  to  give  evidence.  Cases  were  cited  to  show  the 
practice  to  have  been  for  the  plaintiff  to  prove  consideration  given  by  him.  I  must 
own,  that,  as  far  as  my  experience  has  gone,  that  was  the  course.  I  never  have  known 
the  point  mooted  except  in  certain  cases.  A  practice  had  grown  up  of  giving  a  notice 
to  the  plaintiff  calling  upon  him  to  prove  consideration,  and  it  was  a  very  general 
course,  where  such  a  notice  had  been  given,  for  the  plaintiff  to  do  so  in  the  first  instance. 
But  I  have  known  cases  where  the  plaintiff  has  refused  at  first,  and  then,  the  defendant 
having  proved  that  the  bill  was  an  accommodation  bill,  the  plaintiff'  has  in  reply  given 
proof  of  his  being  a  holder  for  value.  The  judges  have  taken  this  question  into  con- 
sideration, it  having  become  much  more  important  to  settle  it,  than  the  particular  man- 
ner in  which  it  should  be  settled.  The  Court  of  King's  Bench  has  been  consulted; 
and  Littledale,  J.  and  Patteson,  J.  have  withdrawn  the  opinions  which  they  expressed 
in  the  case  of  Heath  v.  Sansom.  In  Simpson  n.  Clarke,  undoubtedly,  I  stated  what  I 
now  state,  that  the  practice  was  for  the  holder  to  prove  that  he  gave  value  for  the  bill. 
I  cannot  say  that  I  have  departed  from  that  opinion  witiiout  some  consideration  of  the 
public  convenience.  In  Simpson  v.  Clarke,  I  expressly  stated  that  I  did  not  decide  the 
case  ujjon  this  point,  and  I  said  it  was  not  intended  to  determine  the  question.  It  is 
impossible  to  read  my  judgment  in  that  case  without  perceiving  that  I  abstained  from 
deciding  it.  I  think  I  made  a  distinction  between  bills  given  for  accommodation  only, 
and  cases  of  fraud.  There  is,  indeed,  a  substantial  distinction  between  them,  inasmuch 
as  in  the  former  case  it  is  to  be  presumed  that  money  has  been  obtained  upon  the  bill. 
If  a  man  comes  into  court  without  any  suspicion  of  fraud,  but  only  as  the  holder  of  an 
accommodation  bill,  it  may  fairlj'  be  presumed  that  he  is  a  holder  for  value.  The 
proof  of  its  being  an  accommodation  bill  is  no  evidence  of  the  want  of  consideration 
in  the  holder.  If  the  defendant  says,  I  lent  my  name  to  the  drawer  for  the  purpose  of 
his  raising  money  upon  the  bill,  the  probability  is,  that  money  was  obtained  upon  the 
bill.  Unless,  therefore,  the  bill  be  connected  with  some  fraud,  and  a  suspicion  of  a 
fraud  be  raised  from  its  being  shown  that  something  has  been  done  with  it  of  an  illegal 
nature,  as  that  it  has  been  clandestinely  taken  away,  or  has  been  lost  or  stolen,  in  which 
cases  the  holder  must  sliow  that  he  gave  value  for  it,  the  onus  prohandi  is  cast  upon  the 
defendant.     The  decision  of  the  present  case  requires  only  to  lay  down  this  rule,  that, 


188  NOTES   AND    BILLS.  [CH.  Yl. 

tially  failed. (^)  But  if  the  defendant  can  show  that  the  note 
was  originally  obtained  by  fraud  or  duress,  or  has  been  fraudu- 
lently obtained  from  an  intermediate  holder,  or  has  been  lost  or 
stolen,  or  has  been  in  any  way  the  subject  of  fraud  or  felony,  this 
will  throw  the  burden  of  proof  upon  the  plaintiff.  (A)     In  such 


where  there  is  no  fraud,  nor  any  suspicion  of  fraud,  but  the  simple  fact  is,  tiiat  the  de- 
fendant received  no  consideration  for  his  acceptance,  the  plaintiff  is  not  called  upon  to 
prove  that  he  gave  value  for  the  bill.  That  seems  to  be  the  opinion  generally  prevail- 
ing among  the  judges.  In  this  case  the  onus  jirohandi  lay  on  the  defendant,  aiul  he 
ought  to  have  gone  further."  See,  to  the  same  effect,  Percival  r.  Frampton,  2  Cromp. 
M.&  R.  180  ;  Low  v  Chifney,  1  Bing.  N.  C.  267  ;  Ellicott  v.  Martin,  6  Md.  .509  ;  Mor- 
ton V.  Rogers,  14  Wend.  .575  ;  Knight  v.  Pugh,  4  Watts  &  S.  445 ;  Fletcher  v.  Gushee, 
32  ^Laine,  587  ;  Ross  v.  Bedell,  5  Duer,  462.  In  this  last  case,  Serg&wl,  J.  said  :  "  In 
cases  other  than  those  of  negotiable  notes  obtained  or  put  in  circulation  by  fraud  or 
undue  means,  the  maker,  by  its  negotiable  character,  agrees  that  the  payee  shall  put  it 
in  circulation.  He  has  no  right,  therefore,  to  com])lain  of  his  own  act ;  and  a  holder, 
placing  confidence  in  such  paper,  ought  not  to  be  compelled  to  prove  consideration.  In 
many  cases  it  would  be  exceedingly  difficult  to  do  so,  and  to  require  it  would  throw  a 
serious  impediment  in  the  way  of  the  circulation  of  negotiable  paper.  It  is  othcnvise 
where  there  is  fraud,  because  there  the  maker  gives  no  such  authority.  He  is  in  the 
light  of  an  unfortunate,  rather  than  an  imprudent  man,  and  protection  will  be  given  to 
him  so  f;ir  as  to  require  of  the  holder  proof  of  a  valuable  consideration.  The  policy 
of  the  law  is  to  encourage  the  circulation  of  negotiable  paper,  and  only  intcifercs  to 
require  extraordinary  proof  from  the  plaintiff  in  order  to  protect  one  who  has  been  im- 
posed upon  in  some  way  or  other."  But  sec  Marston  v.  Forward,  5  Ala.  347  ;  Thomp- 
son V.  Armstrong,  7  Ala.  256;  Boyd  v.  Mclvor,  11  Ala.  822.  In  Jacob  r.  Ilungate, 
1  Moody  &  H.  445,  it  was  held,  that  the  fiict  of  a  bill  having  been  accejited  to  raise 
money  for  the  acceptor,  and  of  the  payee  having  appropriated  tlie  money  so  raised  to 
his  own  use,  is  not  sufficient  to  call  upon  a  subsequent  indorsee  to  show  that  he  gave 
value  for  the  bill.     But  sec  this  case  explained  in  Smith  r.  Braine,  16  Q.  B.  253. 

{(l)  Knight  V.  Pugh,  4  Watts  &  S.  445;  Wilson  v.  Lazier,  11  Grat.  477. 

(/()  In  Bailey  v.  Bidwell,  13  M.  &  W.  73,  it  was  luld,  that  where,  in  an  action  on  a 
bill  of  exchange  or  promissory  note,  the  defendant  pleads  that  it  was  illegal  in  its  in- 
ce])tion,  and  that  the  jilaintiff  took  it  without  value,  to  which  the  plainliff  replies  de 
injuria,  tlic  illegality  bting  proved,  the  onus  is  cast  upon  the  plaintilf  of  proving  that 
he  gave  value.  The  same  doctrine  is  declared  in  Smith  r.  Braine,  16  Q  B.  244. 
overruling  Brown  v.  Philpot,  2  Moody  &  11.  285.  In  Harvey  v.  Towers,  6  Exch. 
656,  in  an  action  by  indorsee  a!.rainst  acceptor  of  a  l)ill  of  exchange,  to  which  the 
defendant  pleaded  that  the  bill  was  obtained  by  fraud,  and  that  it  was  indorsed  to 
the  ])laiiififf  without  consideration,  and  the  jilaintiff  replied  dp  liijioia  ;  it  was  firld, 
that,  altlioiigli  the  latter  allegation  was  necessary  to  render  the  pica  good,  proof  of 
the  fraiKl  cast  on  the  plaintiff  the  onus  of  proving  c/)nsideratioii.  Pollock.  C.  B.  said  : 
"It  is  now  settled,  that  if  a  bill  be  founded  in  illegality  or  fratid,  or  has  been  the  sub- 
ject of  felony  or  fraud,  upon  that  l)cing  proved  tlie  holder  is  compelled  to  show  tli.nt  he 
gave  Viiluf  fur  it.  That  was  established  in  Bailey  v.  Bidwell,  and  subsc(pieiitly,  by  the 
Court  of  Queen's  Bench,  in  Smith  c.  Braine,  in  a  considered  judgment."  PlatI,  B.  : 
"  Bailey  v.  Bidwell  and  Smith  r.  Braine  were  the  decisions  of  eight  judges,  that,  if  o 
bill  be  once  infected  with  fraud  or  illegality,  the  consideration  becomes  a  subjectira:tt<'i 


CH.  VI.]  CONSIDERATION.  189 

cases  the  presumption  is,  that  he  who  has  been  guilty  will  part 
with  the  note  for  the  purpose  of  enabling  some  third  party  to  re- 
cover upon  it  for  his  benefit ;  and  such  presumption  operates 
against  the  holder,  and  it  devolves  upon  him  to  show  that  he  gave 
value  for  it.  So  where  the  note  was  given  for  a  distinctly  illegal 
consideration. (?■)  But  it  has  been  recently  held  in  England,  that 
this  rule  will  not  apply  to  a  note  given  in  payment  of  a  bet ;  for 
that  a  bet,  though  void,  and  therefore  no  consideration,  is  not 
illegal,  so  as  to  raise  a  presumption  that  the  indorsement  to  the 
plaintiff  was  without  value. (7) 


to  be  proved  by  the  plaintiff.  There  is  no  hardship  in  such  a  rule,  for  the  j)laintiff 
must  best  know  what  consideration  he  gave  for  the  bill  ;  and  besides,  he  claims  under 
the  party  who  committed  the  fraud."  And  see  Berry  v.  Alderman,  14  C.  B.  9.5; 
Duncan  v  Scott,  1  Camp.  100  ;  Catiin  v.  Hansen,  1  Duer,  309  ;  Aldrich  v.  Warren, 
16  Maine,  46.5;  Perrin  v.  Noyes,  39  Maine,  384;  Munroe  v.  Cooper,  5  Pick.  412; 
Worcester  County  Bank  v.  Dorchester  &  Milton  Bank,  10  Cush.  48S  ;  Holme  r.  Kar- 
per,  5  Binn.  469 ;  Beltzhoovcr  v.  Blackstock,  3  Watts,  20;  Vathir  v.  Zane,  6  Grat.  24G. 
But  see  Russel  v.  Ball,  2  Johns.  50  ;  McLemorc  v.  Cannon,  9  La.  Ann.  22  ;  Matthews  v. 
Poythress,  4  Ga.  287,  305  ;  Nicholson  v.  Patton,  13  La.  213  ;  Sandford  v.  Norton,  14 
Vt.  228;  Bertrand  v.  Barkman,  8  Eng.  Ark.  150;  Wallace  v.  Branch  Bank,  1  Ala. 
565 ;  Hutchinson  v.  Boggs,  28  Penn.  State,  294  ;  McKesson  v.  Stanberry,  3  Ohio  State, 
156.  In  New  York,  it  is  held  that  the  holder  of  a  note  which  has  a  fraudulent  incep- 
tion, or  which  is  obtained  from  the  payee  by  fraud,  must  prove  that  it  was  transferred 
to  him  for  value  and  before  maturity,  but  he  is  not  bound  to  prove  in  addition,  that  at 
the  time  of  the  transfer  he  had  no  knowledge  of  the  fraud,  the  burden  of  showing  this 
being  on  the  defendant.  Hart  v.  Potter,  4  Duer,  458  ;  Ross  r.  Bedell,  5  Duer,  462.  But 
evidence  of  fraud  is  admissible,  without  an  offer  on  the  part  of  the  defendant  to  prove 
notice  to  the  plaintiff,  it  being  sufficient  to  cast  upon  the  holder  the  burden  of  proving 
that  he  gave  a  valuable  consideration.  New  York  and  Virginia,  &c.  Bank  v.  Gibson, 
5  Duer,  574 ;  Tucker  v.  Morrill,  1  Allen,  528  ;  Sistermans  v.  Field,  9  Gray,  As 

to  what  is  a  fraud  in  this  respect,  see  Gray  v.  Bank  of  Kentucky,  29  Penn.  State,  365. 

(t)  See  Bailey  v.  Bidwell,  supra;  Edmunds  i\  Groves,  2  M.  &  W.  642  ;  Bingham  v, 
Stanley,  2  Q.  B.  117.     But  see  Wyatt  v.  Bulmer,  2  Esp.  538. 

(j)  Fitch  V.  Jones,  5  Ellis  &  B.  238,  32  Eng.  L.  &  E.  134,  Lord  CamjMl  said :  "  It 
is  clear  that,  when  there  is  illegality  or  fraud  shown  in  a  previous  holder,  a  presumption 
that  there  is  no  consideration  for  the  indorsements  does  arise  ;  for  the  ]ierson  who  is  guilty 
of  illegality  or  fraud,  and  knows  that  he  cannot  sue  himself,  is  likely  to  hand  over  the 
instrument  to  some  other  person  to  sue  for  him  It  is  not  properly  that  the  burden  of 
proof  as  to  there  being  consideration  is  shifted,  but  that  the  defendant,  on  whom  the 
burden  of  proof  that  there  was  no  consideration  lies,  lias,  by  proving  fraud  or  illegality 
in  the  former  holder,  raised  a /)?•(»;«  yi/cfV  presumption  that  the  plaintiff  is  agent  for 
that  holder,  and  has,  therefore,  unless  that  presumption  be  rebutted,  ])roved  tliat  there 
was  no  consideration.  But  no  such  presum[)tion  arises  where  tlicre  was  in  the  former 
holder  a  mere  want  of  consideration,  without  any  illegality  or  fraud.  The  question, 
therefore,  comes  to  be,  whether  this  note  was  given  for  a  consideration  merely  equiva- 
lent to  no  consideration,  or  whether  the  note  was  given  in  an  illegal  transaction.  I 
am  of  opinion  that  the  note  did  not  take  its  inception  in  illegality  within  the  meaning 


190  NOTES   AND   BILLS.  [CH.  VL 

It  is  clear  that  an  indorsee,  without  consideration,  is  subject  to 
the  same  defences  as  his  immediate  indorser.  For  example,  if  a 
note  is  given  for  a  patent  right  and  tlie  patent  is  declared  void, 
the  promisor  can  defend  against  the  promisee,  on  the  ground  of 
failure  of  consideration.  If  the  promisee  indorsed  it  before  ma- 
turity, for  value,  to  a  holder  without  notice  or  knowledge,  this 
defence  cannot  be  made.  But  if  it  be  indorsed  to  the  same  in- 
dorsee, not  for  value,  it  may  be  made.  The  reason  is  this :  If 
the  transfer  is  made  only  as  a  pretence,  and  without  actual 
change  of  property,  but  merely  to  enable  the  payee  to  get  indi- 
rectly what  he  cannot  get  directly,  then  the  indorsee  is  the  mere 
agent  or  trustee  of  the  payee,  and  the  payee  is  still  tlie  real  pnrty 
in  interest.  If,  however,  it  is  made  in  perfect  good  faith,  both 
parties  believing  the  consideration  sufficient  and  the  note  good, 
and  intending  that  the  note  shall  become  by  the  transfer  the 
property  of  the  indorsee,  it  is  then  a  gift,  and  nothing  more. 

of  the  rule.  The  note  was  given  to  secure  payment  of  a  wagering  contract,  which, 
even  before  Stat.  8  &  9  Vict.  c.  109,  the  law  would  not  enforce :  but  it  was  not  illegal ; 
there  is  no  penalty  attached  to  such  a  wager ;  it  is  not  in  violation  of  any  statute  nor 
of  the  common  law,  but  is  simply  void,  so  that  the  consideration  was  not  an  illegal 
consideration,  but  equivalent  in  law  to  no  consideration  at  all.  Though  it  is  said,  in 
Athcrfold  r.  Beard,  2  T.  R.  610,  that  a  wager  as  to  the  amount  of  hop  duty  is  contrarj- 
to  public  policy,  it  is  not  there  meant  that  it  was  punishable,  but  merely  that  it  was  an 
idle  wager  on  a  matter  in  which  the  parties  had  no  concern,  and  the  discussion  of 
which  might  prejudice  others,  like  the  wager  on  the  sex  of  the  Chevalier  D'Eon  (see 
Da  Costa  v.  Jones,  2  Cowp.  729),  and  therefore  was  a  wager  not  enforceable  by  law, 
though  not  a  breach  of  any  law.  The  note  then  being  given,  not  on  an  illegal  consid- 
eration, but  merely  on  a  void  consideration,  the  presumption  which  the  i)hiiniitl'  would 
be  called  upon  to  rebut  did  not  arise."  Erie,  J. :  "  It  is  clear  that  the  geucral  rule  of 
law  is,  that  when  a  party  to  a  negotiable  instrument  pleads  a  plea  excusing  him  from 
the  fulfilment  of  the  duty  of  paying  according  to  the  tenor  of  the  instrument,  the  bur- 
den of  jiroving  the  plea  lies  on  him.  It  is  also  clear,  that,  when  the  plea  alleges  that 
the  instrument  had  its  inception  in  illegality  or  fraud,  and  that  the  plainfifl'  took  it 
without  value,  proof  that  the  instrument  had  its  inception  in  illegality  or  fraud  raises  a 
presumption  that  the  plaintiff  took  it  without  value ;  and  so  far  shifts  the  burden  of 
proof,  tliat,  unless  the  plaintiff  gives  satisfactory  evidence  that  there  was  consideration 
for  the  instrument,  the  allegation  in  the  pica  that  there  was  no  consideration  will  bo 
taken  to  be  proved.  The  question  in  the  ])resent  case  is,  whether  this  note  was  brought 
within  the  category  of  notes  tainted  wirh  illegality  within  the  meaning  of  (he  rule.  I 
am  of  opinion  that  it  was  not.  I  think  that  the  defendant  might,  witliout  violating  any 
law,  make  a  wager.  If  he  lost,  he  might,  without  violating  any  law,  jiay  what  he  had 
lost,  or  give  a  note  for  the  amount.  I  am  of  opinion,  therefore,  that  the  proof  in  this 
case  had  the  same  legal  effect  as  if  it  had  been  proved  that  the  defendant  made  Need- 
ham  a  present  of  this  note.  It  is  not  as  if  the  note  had  been  given  for  an  illegal  con- 
sideration, or  a  fraudulent  consideration,  but  the  defendant  is  in  the  predicament  of  a 
person  who  voluntarily,  as  far  as  law  is  concerned,  gives  a  negotiable  instrui,icnt  ' 


CH.  VI.]  CONSIDERATION.  191 

And  a  gift  of  negotiable  paper,  not  being  tbat  use  of  the  paper 
for  which  the  law  supposes  it  intended,  is  not  such  a  negotiation 
of  it  as  the  law  contemplates  and  protects. (A;)  And  if  the  donee 
afterwards  transfers  it  by  indorsement  for  less  tlian  its  value,  or 
a  wholly  inadequate  consideration,  but  in  good  faith,  his  indorsee 
can  recover,  we  think,  from  a  prior  party,  only  what  this  indorsee 
paid  for  it.(/) 

In  relation  to  gifts  of  negotiable  paper,  generally,  supposing 
thom  to  be  in  good  faith,  they  are  so  far  valid  that  tb.e  donor  can- 
not recover  them  back  from  the  donee  ;  neither  can  the  donee  re- 
cover on  them  against  the  donor ;  but  he  may  recover  against 
prior  parties  having  no  defence  against  the  donor. (y»)      A  for- 

(h)  See  cases  supra, 
■  [l)  Nash  V.  Brown,  Chitty  on  Bills,  74.  In  this  case  a  hill  of  exchange  was  accepted 
by  the  defendant  as  a  present  to  the  payee,  who  indorsed  it  to  the  plaintift"  for  a  small 
Bum  advanced  by  him.  And  Lord  Eilenboroufjh  held,  that  the  plaintiff  was  only  entitled 
to  recover  so  much  as  he  had  actually  advanced  on  the  bill.  So  in  Allaire  v.  Harts- 
horne,  1  N,  J.  665,  it  was  held,  that  in  an  action  on  a  note,  which  is  invalid  between  the 
original  parties  for  want  of  consideration,  by  a  bona  fide  holder  who  has  advanced  only 
part  of  its  value,  such  holder  can  only  recover  the  amount  which  he  has  actually  ad- 
vanced. And  see,  to  the  same  effect,  Chicopee  Bank  v.  Chapin,  8  Met.  -10 ;  Youngs  v. 
T^e,  18  Barb.  187  ;  Simpson  v.  Clarke,  2  Cromp.  M.  &  R.  342;  Jones  v.  Hibbert,  2 
Stark.  304 ;  Wissen  v.  Roberts,  1  Esp.  261 ;  Williams  v.  Smith,  2  Hill,  301  ;  Petty  v. 
Hannum,  2  Humph.  102 ;  Holeman  v.  Hobson,  8  Humph.  127  ;  Bethune  v.  McCrary, 
8  Ga.  114  ;  Brown  v.  Mott,  7  Johns.  361. 

(w)  Thus,  in  Milnes  v.  Dawson,  5  Exch.  948,  to  an  action  by  the  indorsee  against 
the  acceptor  of  a  bill  of  exchange,  the  defendant  pleaded,  that  the  drawer  indorsed  the 
bill  to  the  plaintiff  without  value  or  consideration,  and  that  the  plaintiff  always  held 
the  same  without  value  or  consideration ;  and  that,  after  the  liill  became  due,  the  drawer 
accepted  certain  scrip  certificates  from  the  defendant,  in  full  satisfaction  and  discharge 
of  the  bill.  Replication,  that  the  bill  was  indorsed  for  a  good  and  sufficient  considera- 
tion. Issue  thereon.  Held,  after  verdict,  that  the  plea  was  bad,  and  that  the  plaintiff 
was  entitled  to  judgment  non  obstante  veredicto.  Parke,  B.  said  :  "  It  would  he  alto- 
gether inconsistent  with  the  negotiability  of  these  instruments,  to  I;old  that,  after  the 
indorser  has  transferred  the  property  in  the  instrument,  he  may,  by  receiving  the  amount 
of  it,  affect  the  right  of  his  indorsee.  When  the  property  in  the  bill  is  passed,  the  right 
to  sue  upon  the  bill  follows  also.  The  question,  whether  Hanson  could  sue  the  plain- 
tiff, we  are  not  now  called  upon  to  determine.  If  it  had  been  averred  that  the  plaintiff 
held  the  bill  as  his  agent,  I  should  not  have  much  difficulty  in  saying  that  the  action 
would  lie.  A  bill  of  exchange  is  a  chattel,  and  the  gift  is  complete  by  delivery  coujiled 
with  the  intention  to  give.  If  the  question  as  to  the  rights  between  donor  and  donee 
were  now  discussed,  with  reference  to  the  state  of  the  la\\"-pn  the  subject  as  it  stood 
towards  the  close  of  the  last  century,  we  might  hold  otherwise  than  we  now  do.  It  has 
been  said,  that  the  donee  of  a  bill  of  exchange  cannot  sue  the  donor  upon  it,  as  the 
donor  may  well  allege  that  the  donee  did  not  give  any  consideration  for  it.  See 
HoUiday  v.  Atkinson,  5  B.  &  C.  501,  and  Mr.  Chitty's  work  on  Bills  of  Exchange, 
where  the  cases  are  to  be  found  collected  at  p.  74.    And,  therefore,  it  may  be  said  that, 


li'2  NOTES   AND    BILLS.  [CH.  \1. 

tiori,  an  indorsee  who  lias  paid  only  a  partial  consideration  may 
recover  the  whole  amount  of  the  note  against  all  prior  parties, 
who  have  no  defence  against  his  immediate  indorser.(«) 

If  the  paper  given  be  not  negotiable,  the  donee  may  sue,  but 
in  the  name  of  the  donor.  Then,  if  the  donor  attempted  to  de- 
feat the  suit  by  recalling  his  gift  or  denying  his  authority  to  sue, 
we  think  he  would  not  be  permitted  to  do  so.  And  if  the  de- 
fendant interposed  a  set-off  or  other  defence  resting  on  equities 
which  grew  up  between  him  and  the  donor  after  he  had  notice 
of  the  gift,  we  think  that  this  would  not  be  allowed.  AVe  rest 
both  of  these  opinions  on  the  general  ground  that  the  donor  has 
effectually  parted  with  his  rights  to  the  donee,  although  he  has 
not  laid  himself  under  any  enforceable  obligation. 

When  the  suit  is  between  any  immediate  parties,  the  only  con- 
sideration which  conies  into  question  is  that  which  passed,  or 
should  have  passed,  between  the  plaintiff  and  defendant.  But  it 
is  otherwise  when  the  suit  is  brought  against  a  party  who  is  re- 
mote from  the  plahitiff.  Here  the  defendant  must  Ijegin  his  de- 
fence, Ity  showing  that  no  consideration  was  paid  to  him,  or  that 
it  failed,  or  that  he  is  an  accommodation  party.  If  he  fails  in 
this,  he  can  go  no  further  as  to  an  inquiry  into  the  consideration, 
liecause  he  certainly  owes  some  one,  and  if  tlie  plaintiff  is  holder 

if  this  bill  was  a  <^ift  from  Hanson,  the  plaintiff  could  not  have  sued  him  upon  it ;  but 
still  Hanson  transferred  all  his  rights  to  the  plaintiff ;  and  how,  therefore,  can  it  bo 
contended  that  a  payment  to  the  donor  is  to  be  taken  as  a  satisfaction  of  a  bill  in  the 
hands  of  the  donee"?  The  learned  counsel  contends,  that  it  is  to  be  presumed  that  the 
indorsement  took  j)lace  after  the  bill  had  become  due  and  payable.  But  we  are  not  at 
liberty  to  draw  any  such  inference;  and  it  is  perfectly  consistent  with  everything  that 
is  stated  in  this  plea,  that  the  full  title  in  the  bill  was  transferred  to  the  plaintiff.  If 
the  plea  had  alleged  that  the  plaintiff  held  the  bill  as  Hanson's  agent,  merely  for  the 
purpose  of  receiving  the  money  for  him,  then  a  payment  to  cither  jiarty  woidd  have 
been  a  good  discharge  of  the  i)arty  liable  upon  the  bill,  and  the  plea  would  have  been 
good  ;  but  in  truth  the  ])lea  does  not  contain  any  such  averment,  and  consequently  it 
cannot  be  sustained."  Alderson,  B. :  "I  am  of  the  same  opinion.  It  is  not  necessary 
to  say  whetlier  Hanson  could  maintain  an  action  for  t]ie  recovery  of  this  amount  from 
the  plaintiff.  But  by  the  indorsement  he  has  transferred  to  the  plaintiff  all  the  rights 
which,  before  the  indorsement,  he  had  of  suing  upon  the  bill.  If,  therefore,  lie  has 
parted  with  all  his  rights,  and  that  of  suing  on  the  bill,  and  the  jjlaintiff  has  them,  how 
is  it  possilile  to  say,  that  a  payment  to  Hanson,  who  has  not  the  bill,  is  a  due  payment 
to  the  plaintiff,  who  has  it?  "  And  sec  Easton  v.  Pratehett,  1  Cromp.  M.  &  R.  798, 
2  Cromp.  M.  &  R.  .542. 

(n)  Reid  v.  Furnival,  5  C.  &  T.  499  ;  Johnson  v.  Kcnnion,  2  Wilson,  262;  Tarboll 
i».  Sturtcvaiit,  26  Vt.  513;  Moore  v.  Candell,  11  Misso.  614;  Tunieri!.  Brown.  3 
Smcdcs  &  M.  425. 


CII.  VI.]  CONSIDERATION.  ld?> 

of  the  note,  it  is  of  no  cDiiseiiuoiicc  to  the  defendant  what  s'alue 
or  whether  any  value  at  all  was  giv(Mi  for  it.  lint  if  he  sueceeds 
in  this,  one  half,  and  no  more,  of  his  defence  is  made  out.  For 
now  he  must  go  on  and  show  that  tlie  holder  (if  he  took  the  note 
or  hill  l)efore  maturity)  to(jk  it  without  consideration  ;  hecause, 
if  eitlier  of  these  considerations  e.\ist,  the  defendant  is  lial)le.(o) 
The  case  inay  he  one,  as  we  have  seen,  in  which  the  defendant, 
after  proving  /its  want  of  consideration,  may  put  tiie  plaintitf  to 
the  proof  of  his;  hut  the  rule,  that  hoth  considerations  must  fail, 
or,  in  other  words,  that  either  of  them  will  sustain  the  plaintiff's 
case,  still  applies. (/>) 

Bills  and  notes  almost  always  contain  the  words  "  value  re- 
ceived," and  it  was  formerly  thought  necessary  to  insert  them, 
and  that  an  instrument  without  them  would  not  he  a  bill  of  ex- 
change. But  it  has  long  l)een  settled  that  they  are  immaterial. 
A  consideration  is  equally  presumed  to  exist,  without  them  or 
with  them.(r/) 

The  words  "  value  received"  are  ambiguous,  where  the  bill  is 
drawn  payable  to  a  third  person  ;  for  they  may  mean  value 
received  by  the  drawer  of  the  payee,  or  by  the  acceptor  of  the 
drawer.  But  the  first  is  the  more  probable  interpretation  ;  for  it 
is  more  natural  "  that  the  party  who  draws  the  bill  should  inform 
the  drawee  of  a  fact  which  he  does  not  know,  than  of  one  of 
which  he  must  be  well  aware." (r) 

If,  however,  the  bill  is  drawn  payable  to  the  drawer's  own 
order,  the  words  "  value  received  "  must  mean  received  by  the 
acceptor  of  the  drawer  ;   and  on  such  a  bill,  if  the  declaration 


(o)  Bosanquet  v.  Corser,  9  C.  &  P.  66,  8  M.  &  W.  142 ;  Bosanquet  v.  Forster,  9 
C.  &  P.  659. 

(p)  Sec  cases  supra,  p.  188,  note  h. 

(q)  White  v.  Lcdwick,  4  Doug.  247,  Bayley  on  Bills,  2d  Am.  ed.,  p.  33,  note  83. 
Ashhurst,  J.  said :  "  The  words  '  value  received  '  are  only  inserted  ex  majori  cautela,  in 
order  tlwt  the  payee  may  be  able  to  recover  upon  it  in  an  action  for  money  lent,  or 
money  had  and  received,  in  case  the  instrument  should  be  defective  in  other  respects  as 
a  bill  of  exchange."  But  in  Townsend  v.  Derby,  3  Met.  363,  it  was  held,  that  a  note, 
though  it  does  not  purport  to  be  for  value  received,  is  admissible  in  evidence  to  sup- 
port a  count  for  money  had  and  received  of  the  payee  by  the  maker.  So  in  Hatch  v. 
Trayes,  11  A.  &  E.  702,  it  was  held,  that  debt  was  maintainable  on  a  promissory  note, 
by  payee  against  maker,  though  the  instrument  did  not  express  that  it  was  for  value 
•eceived,  or  for  any  consideration.  See  further,  Hubble  r.  Fogartie,  3  Rich.  413  ;  Ken- 
iiall  V.  Galvin,  15  Maine,  131. 

(r)  Per  Lord  EUenborough  in  Grant  i;.  Da  Costa,  3  Maule  &  S.  351. 

Vol.  I.— N 


194  NOTES   AND   BILLS.  [CH.  VL 

state  that  it  was  for  value  received  by  the  drawer,  it  will  be  a 
variance. (s)  "Value  received,"  in  a  promissory  note,  means 
received  by  the  maker  of  the  payee. {<) 

It  is  now  well  settled,  that  any  statement  in  a  bill  or  note 
respecting  the  consideration  may  be  explained  or  contradicted  by 
parol  evidence.  It  may  be  shown,  notwithstanding  any  such 
statement,  either  that  there  was  no  consideration  at  all,  or  that 
the  consideration  was  different  from  that  stated. (») 

(s)  Highmore  v.  Primrose,  5  Maule  &  S.  65  ;  Priddy  v.  Henbrey,  1  B.  &  C.  674. 

(0  Clayton  v.  Gosling,  5  B.  &  C.  361. 

(u)  Thus,  in  Abbott  v.  Hendricks,  1  Man.  &  G.  791,  in  an  action  on  a  promissory 
note,  in  which  the  consideration  was  expressed  to  be  "  for  commission  due  to  the  plain- 
tiff for  business  transacted  for  the  defendant,"  the  defendant  pleaded  that  the  real  con- 
Bidcration  for  the  note  was  services  to  be  thereafter  rendered  by  the  plaintiff,  which  had 
never  been  performed.  The  plaintiff  replied  de  injuria.  Held,  that  evidence  in  sup- 
port of  this  plea  was  admissible,  and  ought  to  have  been  received  by  the  judge  at  the 
trial  Tindal,  C.  J.  said :  "I  have  always  understood  the  law  to  be,  that  where  an 
action  is  brought  on  a  promissory  note  by  the  payee  against  the  maker,  the  defendant 
may  show  either  that  there  was  no  consideration  for  the  note,  or  that  the  consideration 
has  failed.  Here,  the  defendant  sought  to  set  up  the  latter  ground  of  defence ;  and 
Foster  v.  Jolly,  1  Cromp.  M.  &  R.  703,  is  a  sufficient  authority  that  the  evidence  for 
th.at  purpose  ought  to  have  been  received.  All  the  cases  cited  on  the  part  of  the  plain- 
tiff have  been  to  the  point,  that,  where  a  promissory  note  or  bill  of  exchange  has  been 
given,  the  defendant  is  not  at  liberty  to  set  up  a  different  contract  from  that  expressed 
in  the  instrument ;  that  is  to  say,  where  the  contract  on  the  face  of  a  note  is  absolute, 
the  defendant  will  not  be  permitted  to  prove  that  it  was  contingent;  if  ]iayable  at  a 
certain  time,  that  period  cannot  be  varied ;  and  where  the  note  is  in  terms  joint,  evi- 
dence will  not  be  allowed  to  be  given  that  one  of  the  parties  was  merely  a  surety.  The 
distinction  seems  to  be  this  :  You  may  show,  either  that  there  was  no  consideration  for 
the  contract,  or  that  it  has  failed  ;  but  you  cannot  set  up  a  different  contract,  for  that 
is  contrary  to  the  general  principles  of  the  law.  As  a  defendant  may  prove,  where 
'value  received  '  is  expressed  in  a  note,  that  there  was  no  consideration,  so  where  a 
special  consideration  is  stated,  I  think  he  is  at  liberty  to  show  that  it  has  failed."  Bo- 
santjiiet,  J. :  "I  am  of  opinion  that  the  evidence  tendered  was  not  rendered  inadmissible 
by  reason  of  the  statement  contained  in  the  note.  It  is  true,  that  the  terms  of  a  contract 
cannot  be  varied  by  a  parol  agreement;  but  the  want  of  a  consideration,  or  the  illegality 
of  the  consideration,  is  a  good  defence  in  an  action  on  a  promissory  note.  Although  a 
note  is  expressed  to  be  given  for  a  good  consideration,  it  maybe  shown,  either  that 
there  was  no  consideration,  or  that  the  consideration  was  illegal.  If  it  were  competent 
to  parties  to  exclude  sucli  evidence,  it  would  be  contrary  to  every  principle  of  justice. 
It  is  the  constant  practice  to  admit  it ;  and  yet  I  do  not  see  why  it  ought  not  to  be 
excluded,  if  the  statement  contained  in  the  present  note  is  to  shut  out  the  evidence 
tendered  at  the  trial."  Coltman,  J. :  "I  have  always  understood  the  rule  to  be,  that 
although  you  cannot  vary  the  terms  of  a  note  by  parol  evidence,  you  may  give  evidence 
to  show  cither  tlnit  it  was  originally  made  without  consideration,  or  that  the  considera- 
tion has  failed.  This  is  fully  borne  out  by  the  authorities  that  have  been  cited.  With 
respect  to  tJie  cases  referred  to  on  the  part  of  the  plaintiff,  they  are  distinguishable  on 
the  ground  that  in  those  cases  the  evidence  sought  to  be  introduced  did  not  refer  to  the 


CH.  VI.]  CONSIDERATION.  195 

A.  debt  from  a  third  person  is,  in  general,  a  good  consideration 
for  a  note.(y)  It  certainly  would  be  so,  if  a  delay  in  calling  in 
the  debt  entered  expressly  into  the  bargain.  Perhaps,  if  the 
debt  were  payable  at  once,  and  the  note  payable  at  a  future  day, 
or  if  both  were  payable  in  future  and  the  note  on  the  longest  time, 
such  agreement  for  delay  would  be  implied.  If  the  original  debt, 
from  the  third  person,  were  payable  only  when  the  note  was  pay- 
able, wliether  at  once  or  in  future,  there  might  be  a  want  of  con- 
sideration, unless  credit  for  the  original  debt  had  been  given  on 
the  promise  of  this  note,  which  certainly  would  be  sufficient. (i(7) 


consideration,  but  went  to  vary  the  terms  of  the  contract.  It  seems  to  me  that  there 
was  a  miscarriage  in  tliis  case,  in  not  admitting  tlie  evidence  offered  at  the  trial." 
Mania,  J. :  "I  also  think  that  the  evidence  in  question  ought  to  have  been  received. 
That  evidence  was  tendered  to  show  that  the  note  was  given  for  services  to  be  after- 
wards rendered,  and  that  they  had  never  been  performed,  and  it  was  rejected  on  the 
authority  of  Adams  v.  Wordley,  1  M.  &  W.  .374.  The  cases  show,  that,  although  a 
consideration  is  stated  in  the  note,  you  may  prove  that  it  was  given  for  a  different  con- 
sideration, or  without  any  consideration  at  all.  The  court  is  not  called  upon  to  say 
whether  the  plea  is  good.  It  does  not  state  that  the  services  were  to  be  rendered  within 
a  reasonable  time;  but  at  present  no  point  arises  upon  it."  And  see,  to  the  same  effect. 
Barker  v.  Prentiss,  6  Mass.  430;  Matlock  v.  Livingston,  9  Smedes  &  M.  489  ;  Simon- 
ton  V.  Steele,  I  Ala.  357  ;  Litchfield  v.  Falconer,  2  Ala.  280  ;  Smith  v.  Brooks,  IS  Ga. 
440.  Some  of  the  dicta  in  Ridout  v.  Bristow,  1  Cromp.  &  J.  231,  must  be  regarded  as 
overruled. 

(v)  roplewcU  V.  Wilson,  1  Stra.  264  ;  Coombs  v.  Ingram,  4  D.  &  R.  211 ;  Burkitt  v. 
Ransom,  2  Collyer,  39.5.  In  Mansfield  v.  Corbin,  2  Cush.  151,  on  the  trial  of  an  action 
by  the  promisee  against  the  maker  of  a  promissory  note,  which  had  been  given  for  a 
debt  of  the  defendant's  son,  who,  at  the  time  of  giving  the  same,  was  of  full  age,  the 
jury  were  instructed  that  the  note  was  without  consideration,  unless  it  was  given  with 
the  knowledge  or  at  the  request  of  the  son,  or  unless,  when  it  was  given,  the  plaintiff 
did  in  fiict  discharge  the  debt  due  to  him  from  the  son ;  it  was  held,  that  these  in- 
structions were  insuflScient,  inasmuch  as  they  precluded  the  jury  from  considering  all 
evidence  of  any  other  ground  of  consideration  for  the  note.  Wilde,  J.  said  :  "  These 
instructions  excluded  from  the  consideration  of  the  jury  any  evidence  of  a  discharge  of 
the  debt  afterwards,  or  of  a  promise  to  discharge  it,  or  of  a  promise  to  delay  to  prose- 
cute, or  an  actual  delay;  either  of  which,  if  proved,  would  be  a  sufBcient  consideration. 
Indeed,  the  slightest  consideration  would  be  sufficient." 

(w)  In  Childs  v.  Monins,  2  Brod.  &  B.  460,  it  was  held,  that  a  promissory  note,  by 
which  the  makers,  as  executors,  jointly  and  severally,  promised  to  pay  on  demand  with 
interest,  rendered  them  personally  liable.  Dallas,  C.  J.  said  :  "  They  promise  abso- 
lutely, and,  further,  add  an  engagement  to  pay  interest ;  when,  therefore,  by  the  engage- 
ment to  pay  interest,  they  have  induced  the  plaintiff  to  suspend  his  clear  and  admitted 

de.Tiand,  by  so  doing  they  make  the  promise  personal  and  individual If  executors 

were  not  liable  on  such  a  promise,  they  would  be  enabled,  by  making  such  a  promise, 
to  defraud  any  individual  among  their  testator's  creditors.  This,  too,  is  a  promise 
which,  from  the  circumstance  of  interest  being  added,  neeessarilj^  imports  a  payment 
at  a  future  day,  and  an  executor  promising  to  pay  a  debt  at  a  future  day  makes  the 


196  NOTES   AND   BILLS.  [CH.  VI. 

So  if  the  note  is  received  in  absolute  payment  and  discharge  of 
the  debt  of  the  third  person,  there  is  undoubtedly  a  sufficient 
consideration ;  and  in  Massachusettts  and  Maine  it  will  be  pre- 
sumed to  have  been  so  received,  in  the  absence  of  evidence  to  the 
contrary. (.X-)  If  the  original  debtor  were  dead,  the  debt  would 
still  be  a  good  consideration  if  he  liad  personal  representatives, 
and  the  debt  were  provable  against  the  estate.  If  it  were  other- 
wise, the  sufficiency  of  the  consideration  might  be  doubted. (y/) 

Compromises  of  uncertain  or  conflicting  rights  constitute  a 
valid  consideration.  The  law  favors  these,  and  will  not  inquire 
into  the  question  compromised,  or  the  relative  force  or  value  of 
rights,  if  there  be  only  an  actiuil  and  honest  compromise  of 
what  are  supposed  to  be  valid  claims. (c)  But  it  must  not  be  the 
abandonment  of  a  suit  (as  for  any  offence)  of  which  public 
policy  requires  tlie  prosecution,  although  a  civil  action  for  an 
injury  may  be  lawfully  compromised. (a)  Thus,  a  note  in  consid- 
eration of  a  release  of  damages  for  slander  is  valid,  although  the 
words  spoken  are  not  actionable. (6)  A  mere  mistake  of  the  law 
will  not  impeach  a  compromise  ;  (6')  but  it  will  be  strictly  exam- 
ined, if  between  parties  who  have  stood  in  a  fiduciary  relation, 
as  guardian  and  ward,  trustee  and  crstui  que  trusty  or,  pei-haps, 
insured  and  insurer,  (c/)  Whether  agreements  to  compromise, 
not  yet  carried  into  effect,  are  binding,  may  not  be  quite  settled. 
In  England  it  may  certainly  be  doubted ;  (e)   but  we  incline  to 


debt  his  own."  In  Crofts  v.  Beale,  11  C.  B.  172,  in  assumpsit  by  payee  against 
maker,  on  a  promissory  note  payable  on  demand  witii  interest,  the  defendant  pleaded, 
that  the  note  was  made  by  the  defendant  as  a  collateral  security  for  a  debt  due  from 
one  J.  S.  to  the  plaintiff;  that  the  defendant  was  not,  at  the  time  of  making  the  note, 
or  ever,  liable  to  pay  the  debt,  or  to  give  the  note  as  a  security  for  the  same ;  and  that 
there  never  was  any  other  consideration  for  the  making  of  the  note,  save  as  aforesaid. 
Held  a  sufficient  plea  of  no  consideration,  after  verdict.  See  also,  Sison  v.  Kidman, 
3  Man.  &  G   810,  11  L.  J.,  C.  P.,  N.  S.  100,  commented  on  in  Crofts  v.  Beale,  snimt. 

{x)  Thachcr  i;.  Dinsmore,  5  Mass.  299.    See  post,  chapter  on  Payment  by  Note  or  Bill. 

(y)  Sec  Serlc  v.  Waterworth,  4  M.  &  W.  9 ;  8.  c-  nom.  Nelson  v.  Serle,  4  M.  &  W. 
79.") ;  Jones  v.  Ashburnham,  4  East,  455. 

(z)  Longridge  v.  Dorville,  5  B.  &  Aid.  117;  Russell  v.  Cook,  3  Hill,  504  ;  Stewart 
V.  Ahrenfeldt,  4  Denio,  189. 

(n)  Kuir  v.  Leeman,  9  Q.  B.  371  ;  Coppock  v.  Bower,  4  M.  &  W.  3G1  ;  Gardner  n 
Maxey,9  B.  Mon.  90  ;  Clark  v.  Bicker,  14  N.  II.  44  ;  Walbridge  i;.  Arnold,  2\  Conn.  4:i4. 

(6)  (J'Keson  i.-.  Barclay,  2  Penn.  .531. 

(c)  Stewart  i-.  Stewart,  6  Clark  &  F.  911,  908  ;  Taylor  v.  Patrick,  1  Bii)b,  lf.8. 

(rf)  Pickering  r.  Pickering,  2  Beav.  31.  , 

(e)  See  Bridgman  v.  Dean,  7  E.xch.  199,  8  Eng.  L.  &  Eq.  534 


CH   VT.]  CONSIDERATION.  197 

think  that  such  bargains,  made  in  good  faith,  would  be  held  in 
this  country  to  create  a  mutual  obligation. 

If  a  note  be  left  with  arbitrators  for  tlicm  to  decide  upon,  an(? 
they  indorse  a  certain  amount,  leaAing  the  balance  payable,  and 
do  this  by  way  of  award,  this  note  is  held  for  consideration,  and 
the  indorsement  is  valid. (/)  So  a  note  in  satisfaction  of  a  breach 
of  covenant,  although  no  release  is  made,  is  valid,  because  the 
note  has  the  effect  of  a  release,  substantially. (,!,'■)  And  where 
there  is  a  hiring  to  service  for  a  year,  and  the  servant  leaves 
without  cause,  and  the  master  gives  a  note  for  the  time  he  has 
served,  this  is  a  sufficient  consideration ;  because  the  master  may 
waive  his  right  founded  on  the  entirety  of  the  contract,  if  lie 
chooses  to  do  so. (A)  An  agreement  to  reconvey,  for  a  certain 
price,  real  estate  held  in  fee  under  a  foreclosure  of  a  mortgage, 
to  secure  a  debt  of  less  amount  tlian  the  value  of  the  estate,  is  a 
sufficient  consideration,  although  purporting  to  be  made  by  two 
partners,  and  executed  by  one  only,  for  a  contemporaneous  agree- 
ment to  give  a  promissory  note  of  a  larger  amount ;  and  an  ac- 
tion may  be  maintained  to  recover  the  full  amount  of  a  note  so 
given,  (i) 

Love  and  affection  alone  are  not  a  valid  consideration  for  a 
promise  or  a  note ;  not  even  from  parent  to  child,  or  from  child 
to  parent ;  nor  by  a  parent  for  his  child,  nor  by  a  child  for  a  pa- 
rent ;  nor  by  a  father  and  husband  for  his  wife  and  children  ; 
unless  there  be  something  in  the  relation  or  the  circumstances 
which  creates  a  legal  obligation. (7)  Nor  is  a  mere  expectation  of 
marriage  ;  nor,  indeed,  any  mere  expectation  without  right ;  and 
on  this  ground  it  has  been  held,  that  the  rendering  of  future  ser- 
vices Vjy  the  payee  is  not  a  good  consideration  for  a  promissory 
note,  unless  there  is  a  binding  contract  for  these  services. (A;) 
Nor  is  submission  to  arbitration  by  a  married  woman,  without 
the  husband's  consent. (/)     Nor  is  the  promise  of  one  to  pay  gen- 

(/)  Sliepharcl  v.  Watrous,  3  Caincs,  166  ;  Schoonmaker  v.  Roosa,  17  Johns.  301. 

[g]  Moody  v.  Leavitt,  2  N.  H.  171. 

(/()  Thorpe  V.  White,  13  Johns.  53. 

(i)  Myers  v.  Phillips,  7  Gray,  508. 

(j)  Holliday  v.  Atkinson,  5  B.  &  C.  501  ;  Pennington  v.  Gittings,  2  Gill  &  J, 
208  ;  Van  Dcrveer  v.  Wright,  6  Barb.  547  ;  Parker  v.  Carter,  4  Munf.  273  ;  Smith  v. 
Ivittridge,  21  Vt.  238.    See  supra,  p.  178,  note. 

(k)  IIulser*Hiilse,  17  C  B.  711. 

[I)  Ramsey  v.  Leek,  5  W^end.  20. 
17* 


10  S  NOTES   AND    BILLS.  [CH.  ^^. 

erally,  who  is  bound  to  pay  only  in  an  especial  and  representative 
capacity,  binding,  unless  some  new  consideration  intervene. (??i) 
But  a  note  by  an  administratrix,  for  "  value  received  by  my  late 
husband,"  was  held  to  imply  and  purport  a  consideration. («) 
And  although  a  contract  may  be  void,  or  voidable,  by  the  Statute 
of  Frauds,  a  note  given  in  pursuance  of  it  will  be  valid. (o) 

Forbearance  of  a  debt,  or  any  delay  in  enforcing  or  prosecut- 
ing any  legal  or  equitable  proceedings  for  any  legal  or  equitable 
right,  is  a  good  consideration. (7?)  The  delay  or  forbearance 
may  be  long  or  short,  provided  it  is  real.  It  need  not  be  ade- 
quate., but  must  be  actual  and  honest,  (^)  It  may  be  the  for- 
bearance of  a  debt  due  from  him  who  makes  or  transfers  the 
note,  or  of  the  debt  of  another  at  his  request ;  and  it  need  not 
even  be  at  the  instance  of  tlie  person  liable  to  be  sued.(r)  It 
may  be  for  a  time  certain,  or  for  a  reasonable  time  ;  or  it  may  be 
general  in  its  terms  ;  and  if  for  a  reasonable  time,  the  actual 
time  should  be  alleged,  and  the  court  will  determine  whether  it 
be  reasonable. (5)  If  general  in  its  terms,  it  will  be  deemed  per- 
petual ;  and  a  suit  at  any  time  is  a  violation  of  the  promise.  (^) 

It  may  be  a  cause  of  action  which  is  yet  to  arise. (m)  It 
must,  however,  be  a  claim  or  right  which  has  some  foundation 
in  law.  Thus,  no  valid  consideration  is  created  by  forbearance 
to  sue  a  note  given  by  one  insane  or  otherwise  disabled,  as  by 
infancy  or  marriage  ;  or  by  forbearance  of  a  debt  discharged  by 
law,  as  if  an  obligor  whose  joint  obligor  has  been  released  ;  or 
by  forbearance  to  prosecute  or  insist  upon  illegal  process  ;  or 
where  there  are  no  parties  lial)le  to  bo  sucd.(y)     If,  however, 

(m)  Ten  Eyek  v.  Vanderpocl,  8  Joliiis.  120;  Sclioonmakcr  v.  Koosa,  I"  Johns. 
301  ;  Bank  of  Troy  v.  Topping,  9  Wend.  273.  But  sec  Cliilds  v.  Monins,  2  Brod.  & 
B.  4G0. 

()>)   Ridout  !;.  Bristow,  1  Cromp.  &  J.  231. 

(o)  Jones  I'.  Jones,  6  M.  &  W.  84.     And  sec  Abcll  v.  Douglass,  4  Dcnio,  305. 

(p)  Sec  1  Parsons  on  Cont.  365. 

(q)  Jcnnison  v.  StafTbrd,  1  Cush.  168  ;  Giles  v.  Acklcs,  9  Pcnn.  State,  147  :  Silvis  v. 
Ely,  3  Watts  &  S  420. 

(r)  Sec  cases  in  preceding  note. 

(s)  Lonsdale  v.  Brown,  4  Wash.  C.  C.  148 ;  Sidwcll  v.  Evans,  1  Pcnn.  385  ;  Down- 
ing V.  Funk,  5  Rawlc,  69 ;  King  v.  Upton,  4  Grcenl.  387. 

(0  Clark  V.  RusscI,  3  Watts,  213  ;  Sidwcll  v.  Evans,  1  Pcnn.  385. 

(u)   Ilamakcr  v.  Ebcrley,  2  Binn.  50G. 

(>••)  Newell  V.  Fi.sher,  11  S.  &  M.  431  ;  Herring  v.  Dorcll,  8  Dowl.  604;  Conimon- 
wealth  I'.  Johnson,  3  Cush.  454 ;  Wade  v.  Simeon,  2  C  B.  548. 


CH.  VI.]  CONSIDERATION.  -  199 

there  be  an  actual  uncertainty  or  honest  doubt  as  to  the  validity 
of  the  claim  foi'borne,  this  seems  to  be  enough  to  make  the  con 
sideration  good.(?^)  But  no  forbearance  is  a  valid  consideration, 
unless  the  promise  to  forbear,  and  tlie  promise  founded  upoi. 
this,  are  mutually  binding,  giving  a  right  of  action  on  the  breach 
of  either. (.f) 

If  a  note  is  put  in  suit,  which  the  maker  gave  to  the  payee  at 
the  request  of  a  third  person,  the  payee  need  not  show  that  any 
consideration  existed  as  between  the  maker  and  the  party  at 
wliose  request  the  note  was  given. (//) 

Cross  notes  are  a  good  consideration  for  each  other ;  a  prom- 
ise being  a  valid  consideration  for  a  promise. (c)  So  is  a  fluc- 
tuating balance  ;  and  where  acceptances  were  lodged  with  a 
l)anker  as  collateral  security,  it  was  held,  that  whenever  the 
balance  was  in  favor  of  the  banker,  he  held  those  acceptances 
for  value. (a)  So  is  a  judgment  debt ;  for  if  a  note  be  given, 
it  either  satisfies  the  judgment,  or  is  and  imports  an  agreement 
to  delay  enforcing  it. (6)     But  if  the  judgment  have  been  pre- 

{w)  Longridgc  v.  Dorville,  5  B.  &  Aid.  117  ;  Zanc  v.  Zane,  6  Munf.  406  ;  Blake  v. 
Peck,  11  Vt.  483  ;  Tniett  v.  Chaplin,  4  Hawks,  178. 

(x)  Cobb  V.  Paoe,  17  Tenn.  State,  469. 

iy)  Horn  v.  Fuller,  6  N.  H.  511  ;  Mercer  V.Lancaster,  5  Penn.  State,  160.  And  see 
supra,  p.  183,  note  a. 

(z)  Thus,  in  Rolfe  v.  Caslon,  2  H.  Bl.  .570,  A  drew  a  bill  of  exchange  on  B,  payable 
to  tlie  order  of  A,  which  B  accepted,  and  B  drew  a  bill  on  A  payable  to  the  order  of  B, 
which  A  accepted,  for  their  mutual  accommodation.  Both  bills  were  payable  at  the 
same  time,  iiad  the  same  dates,  and  contained  the  same  sums.  Held,  tliat  tlie  two  bills 
were  mutual  engagements,  constituting  on  each  part  a  debt,  the  one  being  a  considera- 
tion for  tlie  other;  that  neither  was  given  as  an  indemnity,  which  was  in  its  nature  con- 
diticnal,  but  created  an  absolute  debt  from  the  beginning;  so  that  if  either  party  be- 
came bankrupt,  the  bill  accepted  by  iiim  might  be  proved  under  the  commission,  and, 
consequently,  to  an  action  brought  on  it  his  bankruptcy  might  be  pleaded.  And  see 
to  the  same  effect,  Cowley  v.  Dunlop,  7  T.  R.  565 ;  Buckler  v.  Buttivant,  3  East,  72 ; 
Dockray  v.  Dunn,  37  Maine,  442  ;  Dowe  v.  Schutt,  2  Denio,  621  ;  Cushing  v.  Gore,  15 
Mass.  69  ;  Eaton  v.  Carey,  10  Pick.  211  ;  Higginson  v.  Gray,  6  Met.  212  ;  Whitticr  v. 
Eager,  1  Allen,  499.  In  Burdon  v.  Benton,  9  Q.  B.  843,  in  an  action  by  drawer 
against  acceptor  of  a  bill  of  exchange,  it  was  held,  that  a  plea  that  defendant  accepted 
merely  for  plaintiff's  accommodation,  and  tliat  plaintiff  did  not,  at  any  time,  give  any 
value  or  consideration  for  the  acceptance,  failed,  if  it  appeared  that,  after  the  bill  was 
accepted  (as  alleged)  for  accommodation,  the  plaintiff  gave  a  cross  acceptance  and  was 
obliged  to  pay  the  amount,  and  that  the  bill  accepted  by  the  defendant  was  due  ar.d 
unpaid  at  the  time  of  the  action  brought.  See  further,  Greenwood  v.  Pattison,  7  La. 
Ann.   197;  Shannon  r.   Langhorn,  9  La.   Ann.  526. 

(a)   Bosanquet  v.  Dudrnan,  1  Stark.  1  ;  Bolland  v.  Bygrave,  Ryan  &  M.  271. 

(6)  Baker  v.  Walker,  14  M.  &  W.  465. 


200  NOTES   AND   BILLS.  [CH.  VL 

viously  satisfied  in  any  way,  or  set  aside,  or  avoided,  it  is  no 
consideration,  (6")  -» 

If  a  note  given  as  an  apprentice  fee  be  sued,  it  is  no  answer 
that  the  misconduct  of  the  master  had  terminated  the  apprentice- 
ship, unless  the  note  was  on  condition  that  the  apprenticeship 
should  conthiue  for  a  certain  time,  and  it  ended  sooner.(<;/) 
Generally,  if  a  note  be  given  for  a  promise,  or  a  contract,  of 
which  performance  can  be  enforced,  a  refusal  to  perform  it  is  no 
defence  to  an  action  on  the  note.  The  defendant's  remedy  is  by 
compelling  performance  of  the  promise  for  which  the  note  was 
given. (e)  The  discharge,  by  a  mother  of  an  illegitimate  child, 
of  a  prosecution  brought  by  her  agahist  the  putative  father,  is 
not  only  a  valid  consideration,  but  it  is  no  defence  that  a  prose- 
cution was  carried  on  by  the  overseers,  and  a  decree  for  main- 
tenance obtained.  (/)  If  a  note  be  given  for  a  lottery-ticket, 
which  is  said  and  believed  to  have  drawn  a  prize,  it  is  no  defence 
that  it  in  fact  drew  a  blank. (i>) 

If  a  note  be  given  for  a  consideration  passing  between  one  of 
the  parties  to  the  note  and  a  third  person,  and  the  payee  sue  tlie 
maker,  it  seems  to  be  held  immaterial  in  that  action  whether  this 
consideration,  as  affecting  the  third  party,  has  failed  or  not.(/t) 

It  has  been  held,  and  we  think  rightly,  that  if  one  gives  a  note 
in  fraud  of  his  creditors,  and  the  payee  knows  it,  if  the  payee 
sues  the  note,  the  fraud  may  bo  given  in  defence. (/)  For  the 
parties  are  in  pari  delicto ;  and  neither  can  found  a  claim  upon 
it.  If  money  had  been  paid,  it  could  not  be  recovered  l)ack  ; 
))ut  if,  instead  of  money,  a  promise  is  made,  in  writing  or  by 
words  only,  tliat  promise  cannot  be  enforced. 

If  a  copartnership  note  be  given  to  a  partner  for  a  balance  due 
him,  and  he  indorse  it  over,  it  is  no  defence  to  an  action  by  the 
indorsee,  that  the  plaintiff  knew  between  what  parties  and  for 
what  consideration  it  was  given. (/)     So,  if  a  bill  be  drawn  by 

(c)  Deiinison  v.  Brown,  3  Vt.  170. 

(d)  r.iatit  V.  Welcliinan,  IG  East,  207. 

('-)   -Mo^'Kii'l^i'  V.  Jones,  14  Knst,  480  ;  Frelif;!!  v.  Plntt,  .5  Cowen,  494. 
(/■)   Iliivcn  V.  II(jl)I)s,  1  Vt.  238;  Kiiij,rlit  v.  Priest,  2  Vt.  507. 
(v)   IJiiiiiiiin  V.  Uarniiin,  8  Conn.  469. 

(A)  Tarsons  i-.  Gaylord,  3  Jolins.  463  ;  Nirkerson  i'.  Howard,  19  Jolins.  113;  liangci 
V.  Cleveland,  10  Mass.  41.'>. 

(/)   Wearsc  v.  Ptirce,  24  Pick.  141. 

(j)  Smith  V.  Lusiier,  5  Cowcn,  688.     And  sec  ante,  p.  137,  note  z. 


CH.  VI.]  CONSIDERATION.  201 

f 

one  partner  and  accepted,  and  it  has  the  same  effect  upon  a  debt 
between  the  copartnership  and  the  acceptor  as  if  drawn  by  the 
firm,  the  acceptor  is  bound. (A:)  And  if  a  firm  be  dissolved,  and 
the  copartners  agree  that  one  of  them  sliall  receive  all  the  debts, 
and  another  of  them  draws  a  bill  upon  a  debtor  of  the  firm. 
wliich  is  accepted,  the  stipulation  in  the  deed  of  dissolution  is  no 
defence  to  an  action  against  the  acceptor. (/)  But  the  partner 
who  drew  must  account  with  the  partner  who  alone  had,  by  the 
stipulation,  a  right  to  draw.(m)  And  generally,  if  one  partner 
give  another  a  note,  a  court  of  law  will  not  investigate  the 
accounts  to  ascertain  whether  the  balance  was  due  the  payee  ; 
for  the  only  remedy  is  in  the  equity  jurisdiction  over  cases  of 
partnership. (/i)  But  if  a  member  of  a  corporation,  with  no  new 
consideration,  give  his  note  for  a  debt  of  the  corporation,  payable 
at  a  future  day,  the  note  is  but  a  promise  to  pay  tlic  debt  of 
another,  without  consideration. (o) 

If  an  indorser  make  an  express  promise  to  the  maker  to  take 
up  the  note,  it  is  said  that  "  there  is  no  question,"  but  this  is  a 
valid  consideration  for  a  note  to  the  indorser. (/*)  The  case  in 
which  this  langnage  is  used  does  not  require,  nor  perliaps  justify, 
so  broad  a  statement ;  and,  as  a  general  rule,  we  think  it  open 
to  some  doubt  or  qualification. 

If  one  gives  a  note  for  a  certain  sum,  under  a  mistaken  belief 
that  he  is  liable  to  the  payee  to  that  amount,  the  note  is  without 
consideration  ;  although  the  mistake  arose  from  a  misapprehen- 
sion of  the  law,  and  not  from  an  ignorance  of  facts  ;  the  maxim, 
ig-iiorantia  juris  nan  excusat,  not  being  applicable  to  such  a 
case. (7)  A  fortiori,  a  note  given  by  a  party  in  satisfaction  of  a 
liability  from  which  he  was  discharged,  in  ignorance  of  the  facts 


(k)  Thus,  in  Tomlin  v.  Lawrence,  3  Moore  &  P.  555,  the  defendant  havinj:  accepted 
a  bill  of  exchange  drawn  on  him  hy  one  of  two  partners,  in  his  own  name,  for  a  debt 
due  to  botli ;  it  was  held,  that  tlie  defendant  was  liable  in  an  action  at  the  suit  of  an 
indorsee,  as  the  defendant  could  not  bo  sued  for  the  debt  due  from  him  to  the  partners, 
until  the  bill  of  cxcbanjre  was  due  and  dishonored. 

(/)  King  V   Smith,  4  C.  &  P.  108. 

(m)  King  v.  Smith,  supra. 

(n)  Kogcrs  v  Kogcrs,  1  Hall,  391. 

(o)  Rogers  v.  Waters.  2  Gill  &  J.  64. 

ip)  Gushing  v.  Gore,  15  Mass.  69. 

(7)  Southall  V.  Rigg.  11  C.  B.  481.  Jervls,  C.  J.  said:  "Want  of  consideration  is 
ftltogctlier  independent  of  knowledge  either  of  the  fiicts  or  the  law." 


202  NOTES   AND    BILLS.  [CH.  VL 

which  constituted  such  discharge,  cannot  be  enforced  against 
him,  though  he  may  have  had  the  means  of  knowing  those 
facts.  (/•) 

If  a  corporation,  required  by  law  to  invest  its  capital  in  a  cer- 
tain way,  takes  a  note  from  a  shareholder  as  a  part  of  his  stock, 
to  a  suit  thereon  he  cannot  object  that  such  investment  of  the 
capital  was  not  warranted  by  law. (5)  Whether  a  subscription  of 
money  to  create  or  increase  the  funds  or  capital  is  binding  or 
not,  must  depend  upon  general  considerations,  which  it  would 
be  out  of  place  to  present  here.  If  they  were  binding,  a  note  for 
the  amount  would  certainly  rest  on  a  valid  foundation  ;  but  we 
do  not  think  that  a  note  would  make  them  so,  or  that  the  note 
should  be  recoverable  between  the  parties,  if  the  simple  subscrip- 
tion were  not ;  although  it  has  been  held  otherwise. (^)  If  the 
subscription  or  the  promise  or  note  were  made  to  persons  who 
had  no  legal  right  to  receive  the  money  and  apply  it  to  that  pur- 
pose, it  seems  quite  clear  that  the  note  would  not  be  valid. («/) 

The  prevailing  rule  in  this  country  on  this  subject  may  be 
stated  thus :  If  notes  are  given  by  one  or  more  persons  to  any 
corporation  or  other  legal  person,  or  any  trustees,  by  way  of  vol- 
untary sul)scription,  to  raise  a  fund  or  promote  an  object,  these 
notes  arc  open  to  the  defence  of  a  want  of  consideration,  unless 
the  payee  has  expended  money,  or  entered  into  engagements, 
which,  by  a  legal  necessity,  must  cause  loss  or  injury  to  the 
payee  if  the  notes  are  not  paid.  And  the  mere  expectations  of 
the  payee  would  not  be  enough  ;  nor  the  plans  and  purposes  of 
the  payee,  if  they  have  not  led  to  actual  obligation. (y)  If  sun- 
dry subscribers  give  their  notes  in  such  shape  that  they  may  be 
ti'eated  as  given  by  each  one  to  the  rest,  then,  according  to  one 


(r)  Therefore,  wlicrc  a  bill  of  exchange,  indorsed  by  A  for  the  accommodation  of  tho 
drawer,  was  afterwards  altered  in  a  material  point,  with  tho  consent  of  the  drawer,  and 
wlien  the  hill  was  at  maturity,  B,  the  then  holder,  made  a  demand  npon  A,  who,  igno- 
rant of  the  alteration,  though  he  had  am])lc  means  of  knowing  it,  gave  B  a  jM-omissory 
note  for  the  amount  of  the  bill  and  expenses,  it  was  held,  that  it  was  a  good  di'fen'?c  tc 
an  action  on  the  note  by  B,  that,  at  the  tiine  A  gave  it,  he  was  not  in  fact  awar»i  of 
the  alteration  in  the  bill.  Bell  v.  Gardiner,  4  Man.  &  G.  U.  And  see  Bullock  i-  Og 
burn,  l.T  Ala  .34f>;  Mercer  v   Clark,  3  Bibb,  224. 

(s)  Little  V   Obrien,  9  Mas.s.  42.3. 

(0  See  Fisher  v.  Kllis,  .3  Pick.  .322;  Amherst  Academy  v.  Cowls,  6  Pick.  427 

(u)  Boutcll  »'.  Cowdin,  9  Mass.  2.54. 

(«;)  See  1  Parsons  on  Cont.  377,  et  seq. 


Cir.  VI.]  FAILURE   OF   CONSIDERATION.  203 

authoritative  decision  at  least,  the  notes  of  the  rest  would  bo  a 
valid  consideration  for  the  note  of  each  subscriber. (w) 


SECTION     II. 

OF    FAILURE    OF    CONSIDERATION. 

The  entire  failure  of  consideration,  after  a  note  is  given,  is  as 
complete  a  defence  as  an  original  absence  of  all  consideration. (:«) 
And  a  partial  failure  is,  under  certain  circumstances,  a  partial 
and  proportional  defence. (y)  We  must,  however,  discriminate 
between  a  failure  of  consideration  and  a  failure  of  benefit  result- 
ing from  it.  A  promises  B  to  do  a  certain  thing,  and  B  makes 
his  note  to  A  in  consideration  of  this  promise.  Then  A  fails  en- 
tirely to  perform  his  promise,  but  sues  B  on  his  note.  If  B  retains 
A's  promise,  or  if  the  contract  is  such  that  A  is  always  and  per- 
manently lield  on  his  promise,  B  cannot  defend  against  the  note 
on  the  ground  of  a  failure  of  consi deration. (s:)     But  if  B  cancels 

(lu)  George  v.  Harris,  4  N.  H.  533. 

(x)  See  Jackson  v.  Warwick,  7  T.  R.  121  (and  compare  it  with  Grant  v.  Welchman, 
16  East,  207)  ;  Mann  v.  Lent,  10  B.  &  C.  877  ;  Cuff  v.  Brown,  5  Price,  297  ;  Knowles 
V.  Parker,  7  Met.  30. 

(y)   Sec  iti/ra. 

(z)  In  Spillcr  i-.  Westlake,  2  B.  &  Ad.  155,  it  was  held  to  be  no  defence  to  an  action 
by  the  payee  against  the  maker  of  a  promissory  note,  that  the  payee  had  agreed  to  con- 
vey an  estate  to  the  maker  in  consideration  of  a  sum  of  money  then  paid  or  secured  to 
bo  paid  t)y  the  maker  (being  the  sum  mentioned  in  the  note),  and  of  a  further  sum  to 
be  paid  at  a  future  day,  and  that  such  estate  iiad  not  been  conveyed.  Lord  Tenterden 
said :  "  Where,  by  one  and  the  same  instrument,  a  sum  of  money  is  agreed  to  be  paid 
by  one  party,  and  a  conveyance  of  an  estate  to  be  at  the  same  time  executed  by  the 
other,  the  payment  of  the  money  and  the  execution  of  the  conveyance  may  very  prop- 
erly be  considered  concurrent  acts,  and  in  that  case  no  action  can  be  maintained  by  the 
vendor  to  recover  the  money  until  he  executes  or  offers  to  execute  a  conveyance  ;  but 
here  the  vendee,  by  a  distinct  instrumunt,  agreed  to  pay  part  of  the  purchase-money  on 
the  second  of  February.  I  can  see  no  reason  why  he  should  have  executed  a  distinct 
instrument  whereby  he  promised  to  pay  a  part  of  the  purchase-money  on  a  particular 
day,  unless  it  was  intended  that  he  should  pay  the  .money  on  that  day  at  all  events. 
In  the  cases  cited,  the  concurrent  acts  were  stipulated  for  in  the  same  instrument ;  here 
the  ])aymcnt  of  the  £200  (which  was  part  only  of  the  purchase-money)  was  separately 
provided  for."  Parke,  3.:  "I  incline  to  think  that  the  defence  to  this  action  would 
have  been  maintainable,  if  the  circumstances  had  been  such  that  the  defendant,  having 
paid  the  £  200  as  a  deposit,  would  have  been  so  entitled  to  recover  it  back ;  but  it  is  per- 
fectly clear  that  he  could  not  have  been  so  entitled  as  long  as  the  contract  remained 
open.     Now  here  the  contract  remained  open  at  the  time  when  the  action  was  com- 


-0-4  NOTES   AND    BILLS.  [CH.  VL 

A's  promise,  and  A  accepts  this,  the  contract  is  so  far  rescinded 
and  annulled,  and  then  the  consideration  for  the  note  fails.  So 
if  one  sells  with  warranty,  and  tliere  is  a  breach,  this  does  not 
permit  the  buyer  to  defend  against  the  note  he  gave  for  the 
price ;  (a)  at  least,  unless  the  property  proved  to  be  entirely 
worthless. (i)     There  should  be  also,  it  has  been  held,  an  offer  to 

menced,  for  the  plaintiffs  agreed  only  to  convey  the  estate  suhjeot  to  tlie  two  mortgages. 
They  were  never  bound  to  convey  the  legal  estate  to  the  defendant,  but  merely  the 
equity  of  redemption  ;  and  that  they  had  never  refused  to  convey."  In  Trask  v.  Vin- 
son, 20  Pick.  105,  where  the  consideration  of  the  note  sued  on  was  the  assignment  of 
an  airreemeiit  to  convey  certain  real  estate,  Morton,  J.  said  :  "  The  defendant's  counsel 
argues,  that  if  the  contractor  fails  to  convey  according  to  the  terms  of  his  agreement, 
this  will  be  a  failure  of  the  consideration  of  tiie  notes.  In  support  of  the  argument  ho 
relies  upon  the  cases  of  Dickinson  r.  Hall,  14  Pick.  217,  and  Rice  v.  Goddard,  14  Pick. 
293.  There  it  was  holden  that  where  the  consideration  of  a  note  was  the  conveyance 
of  property,  real  or  personal,  and  the  title  failed,  so  that  nothing  passed  i)y  the  convey- 
ance, the  note  was  nudum  pactum.  Those  cases  were  well  considered,  and  are  founded 
on  sound  principles,  and  supported  by  an  irresistible  current  of  authorities.  With  the 
exception  of  a  few  obiter  dicta  in  our  own  reports,  and  the  case  of  Lloyd  i'.  Jewell  in 
Maine,  1  Greenl.  3.52,  scarcely  a  dictum  to  the  contrary  can  be  found,  while  tliere  is  a 
remarkable  coincidence  in  all  the  other  American  and  English  decisions  upon  the  sub- 
ject. But  tliosc  cases  are  unlike  the  present.  There,  the  real  consideration,  the  moving 
cause  of  the  promise  to  pay,  was  the  estate  actually  conveyed  ;  here,  it  is  an  agrcomcut 
to  convey,  at  a  future  time,  and  upon  the  hap])ening  of  a  future  event.  That  was  an 
executed,  tliis  an  executory  contract.  The  rule  of  damages,  too,  would  he  different 
in  the  two  cases.  Tliere,  the  rule  of  damages  would  be  tlie  exact  amount  of  the  con- 
.•^1  Kration  paid  ;  here,  it  woulj  be  the  value  of  the  estate  at  the  time  it  was  to  be  con- 
veyed. There,  if  the  promisor  was  holden  to  pay  his  note,  he  might  recover  for  the 
breach  of  the  covenant  of  seisin  precisely  the  same  sum.  Here,  the  damages  recover- 
able on  the  stiimlatioii  or  covenant  might  be  more  or  less  than  the  amount  paid  or 
received."  In  Moggridgc  v.  Jones,  3  Camp.  38,  14  East,  486,  A  having  agreed  to  ex- 
ecute a  lease  of  jircmises  to  B,  who  was  to  pay  a  certain  sum  for  it;  and  B,  wlio  was 
let  into  possession,  having  acce])ted  a  bill  for  the  considci-ation  money  drawn  on  him  by 
A ;  it  was  held  to  be  no  defence  to  an  action  on  the  bill  by  A  against  B,  that  the  formci 
refused  to  execute  the  lease,  but  his  remedy  must  be  on  the  agreement.  Lord  El/eH' 
borour/h  said  :  "  Tiio  money  agreed  upon  for  the  premises  would  have  been  payable  im- 
mediately;  but  for  the  convenience  of  the  defendant,  the  plaintiff  agreed  to  take  his 
acceptances  at  a  future  day.  This  bill  must,  therefore,  be  paid  in  course  when  due; 
and  the  defendant  will  have  his  remedy  upon  the  agreement  for  the  non-execution  of 
the  lease."  So  in  Freligh  v  Piatt,  5  Cowen,  494,  wlicrc  a  promissory  note  was  given 
in  consideration  of  a  sale  of  pews  followed  with  j)Ossession  in  the  vendee,  it  was  held 
to  be  no  defence  that  the  vendor  refused  to  convey.  The  remedy  was  liy  compelling  a 
performance.  In  Ciiapman  v.  Eddy,  13  Vt.  205,  it  was  held  to  be  no  defence  to  a  note, 
that  the  consideration  thereof  was  a  promise,  by  the  payee,  to  give  a  deed  of  a  pew, 
by  a  certain  time  tiiereafter,  which  was  not  done  within  the  time  specified,  nor  imtil 
after  tin;  commencement  of  the  action  on  the  note.  And  sec  Wade  v.  Killough,  3  Stew. 
&  P.  431  ;  George  v.  Stockton,  1  Ala.  136  ;  Head  v.  Cummings,  2  Greenl.  82. 

(a)   Obbard  v.  Bctham,  Moody  &  M.  483.     And  sec  in/ni,  p.  207,  note  i. 

{b)  Shepherd  i-.  Temple,  3  N.  H.  -155.     In  this  case  it  was  held,  tlial  in  an  action  on 


CH    VI.]  FAILURE   OF    CONSIDERATION.  205 

return  tlic  property  and  rescind  the  contract. (c)  The  buyer's 
remedy  nuist  be  by  an  action  on  the  warranty.  But  if  there  is 
fraud,  this  avoids  the  note,  although  the  buyer  may  alyo  have  his 
action  for  the  deceit. (c/)  So  it  is  no  defence  that  the  goods  for 
which  the  note  is  given  are  far  less  in  value  than  was  supposed ; 
for  this,  in  the  absence  of  fraud  or  warranty,  would  not  be  either 
a  partial  or  total  failure  of  consideration,  as  the  buyer  takes  that 
risk  upon  himself,  (e)  And  this  might  be  so  even  if  the  loss  of 
value  were  nearly  total,  provided  the  thing  supposed  to  be  sold 
was  sold  and  delivered.  If  one  gave  his  note  for  a  hundred 
hogsheads  of  sugar,  and  it  was  found  that  the  sugar  had  been 
washed  out  or  otherwise  abstracted,  in  whole  or  in  part,  this 
would  be  a  total  or  partial  failure  of  consideration.  But  if  the 
sugar  was  there,  but  not  so  good  as  the  buyer  expected,  or  not 
worth  so  much  in  the  market,  or  even  if  it  were  mixed  with  sand 
or  otherwise  deteriorated,  not  so  as  to  be  worthless  and  unsalable, 
but  so  as  to  be  of  less  value  than  the  buyer  expected,  this  would 
not  be  a  partial  failure  of  consideration,  nor  would  it,  generally, 


a  promissory  note  given  for  tlie  price  of  goods  sold  with  a  warranty,  it  is  a  good  defence 
that  the  goods  turned  out  to  be  of  no  value.    And  see  Ilumsey  v.  Sargent,  1  Foster,  399. 

(c)  Thornton  v.  Wynn,  12  Wheat.  183.     See  Kase  v.  John,  10  Watts,  107. 

(d)  Lewis  v.  Cosgrave,  2  Taunt.  2 ;  Solomon  v.  Turner,  1  Stark.  51 ;  Fleming  v. 
Simpson,  1  Camp.  40,  note. 

(e)  Thus,  in  Ruddcrow  v.  Huntington,  3  Sandf  2.52,  where  goods  were  sold  by  an 
auctioneer,  without  any  warranty  or  misrepresentation,  and  the  same  turned  out  to  be 
spurious,  and  the  labels  upon  them  counterfeit,  it  was  held,  that  this  was  no  defence  to  an 
action  on  a  note  given  for  the  purchase-money,  there  being  no  proof  that  the  auction- 
eer knew  the  fact  of  the  spurious  nature  of  the  goods,  or  tliat  he  had  any  better  means 
of  judging  of  their  genuineness  than  the  buyers  possessed.  And  see  Fleming  v. 
Simpson,  1  Camp.  40,  note.  So  in  Reed  v.  Prentiss,  1  N.  H  174,  it  was  held  to  be  no 
defence  to  an  action  on  a  note,  that  the  article  for  which  it  was  given  proved  to  be  of 
no  value.  But  had  the  property  never  passed,  or  had  fraud  been  practised,  or  an  ex- 
press warranty  been  broken  in  relation  to  the  article,  either  of  these  circumstances 
might  have  defeated  the  action.  In  Perley  t\  Balch.  23  Pick.  283,  Morton,  J.  said  :  "  If 
a  chattel  be  of  no  value  to  any  one,  it  cannot  be  the  basis  of  a  bargain  ;  but  if  it  be  of 
any  value  to  either  party,  it  may  be  a  good  consideration  for  a  promise.  If  it  is  bene- 
ficial to  the  purchaser,  he  certainly  ought  to  pay  for  it.  If  it  be  a  loss  to  the  seller,  he 
is  entitled  to  remuneration  for  his  loss."  In  Johnson  v.  Titus,  2  Hill,  606,  it  was  held, 
that  if  an  article  sold  be  of  the  slightest  value  to  either  the  vendor  or  vendee,  it  will 
suffice  by  way  of  consideration  for  a  promise  to  pay  the  agreed  price,  however  dispro- 
portionate to  the  real  value.  Accordingly,  where  one  purchased  mulberry-trees  which 
turned  out  to  be  of  no  value  to  him,  by  reason  of  being  decayed  and  almost  life- 
less, it  was  held,  that,  as  there  was  neither  fraud  nor  warranty  in  the  case,  this  consti- 
tated  no  defence  to  an  action  on  a  note  given  for  the  price.  And  see  Welsh  v.  Carter, 
1  Wend.  185. 

VOL.  I.  18 


206  KOTES   AXD   BILLS.  [CH.  VI 

give  the  promisor  any  defence  or  remedy,  unless  he  should  prove 
fraud  or  misrepresentation,  or  warranty,  express  or  implied. 

So  also,  it  is  no  defence  to  an  action  on  a  bill  of  exchange 
given  for  the  purchase-money  of  property  sold,  that,  two  months 
after  the  delivery  of  the  goods  to  the  vendee,  the  vendor  forcibly 
retook  possession  of  them ;  for  the  vendee  cannot  treat  that  act 
as  a  rescission  of  the  contract,  but  must  bring  trespass. (/)  We 
should  think,  however,  that  if  the  vendor  retook  the  goods  an  an 
act  of  rescission,  the  vendee  might  assent  to  this,  and  then  could 
defend  against  the  note  as  avoided. 

But  if  a  note  be  given  in  payment  of  the  price  of  certain  goods 
sold  by  the  payee  to  the  maker,  as  of  the  manufacture  or  growth 
of  a  particular  person,  and  answering  certain  samples,  to  be  de- 
livered by  the  payee  to  the  maker  within  a  reasonable  time ;  and 
the  payee  fails  to  deliver  goods  answering  to  the  description  of 
the  contract,  this  will  constitute  a  complete  defence  to  an  action 
on  the  note.(^)  Under  such  circumstances,  the  vendee  has  a 
right  to  rescind  the  contract ;  and  if  the  purchase-money  had 
already  been  paid,  he  might  recover  it  back. 

It  has  been  held,  that  a  note  for  a  patent  right  cannot  be  en- 
forced if  the  patent  is  void,  although  the  seller  sold  witli  it  some 
materials,  which,  however,  had  no  value  to  the  buyer  unless  the 
patent  was  valid. (/i)     We  should  say  this  is  law,  although  the 

(/)  Stephens  v.  Wilkinson,  2  B.  &  Ad.  320. 

(ry)  Wells  V.  Hopkins,  .5  M.  &  W.  7.  In  this  case,  to  an  action  hy  tiic  indorsee 
against  tlie  drawer  of  a  bill  of  exchange,  the  defendant  pleaded  that  the  bill  was  given 
in  payment  of  the  price  of  seventeen  pockets  of  hops  sold  by  the  plaintiif  to  the  defend- 
ant, as  hops  of  a  certain  grower,  and  answering  certain  samples,  to  be  delivered  by  the 
plaintiff  to  the  defendant  within  a  reasonable  time;  that,  althongh  a  reasonable  time 
had  elapsed,  the  plaintiff  had  not  delivered  to  the  defendant  any  hops  answering  the 
samples,  or  any  hops  whatsoever  ;  and  that  there  was  no  consideration  for  the  bill  ex- 
cept as  aforesaid.  Replication,  de  injuria.  It  appeared  that  the  plaintiff  had  delivered 
to  the  defendant  seventeen  pockets  of  hops,  but  inferior  to  the  sani[)les.  Ildd,  that  the 
general  allegation  in  the  plea,  that  the  plaintiff  had  not  delivered  any  hoi)s  whatever, 
was  immaterial,  and  might  be  rejected  ;  and  that,  without  it,  the  ))lea  showed  a  total 
failure  of  consideration,  and  was  an  answer  to  the  action.  JMd,  also,  that  if  the  plain- 
tiff relied  on  the  defendant's  acceptance  of  the  inferior  hops,  he  ought  to  have  re)ilied 
it.  Aldirson,  B.  said  :  "  The  latter  allegation  in  the  plea  was  an  immaterial  one,  which 
need  not  be  proved.  It  is  a  total  failure  of  consideration,  if  there  be  a  liargain  for  a 
certain  kind  of  goods  to  be  delivered  in  a  reasonable  lime,  and  no  such  goods  are  de- 
livered within  a  reasonable  time."     And  sec  Bowles  v.  Newby,  2  Blackf.  304. 

(/()  Bliss  I'.  Negus,  8  Mass.  46  ;  Earl  v.  Page,  C  N.  II.  477  ;  Dunbar  r.  Mardcn,  13 
N.  H.  311  ;  Jollilfe  v.  Collins,  21  Misso.  338;  Geiger  v.  Cook,  3  Watt.s  &  S.  266.  In 
Dickinson  v.  Hall,  14  Tick.  217,  where  the  purchaser  of  a  patent  right  gave  thcrcfoi 


CH.  VI.]  FAILUEE    OF    CONSIDERATION.  207 

authorities  are  not  uniform. (f)  So  wliere  A  appointed  B  liis 
executor,  and  gave  him  a  note  by  way  of  compensation  for  the 
trouble  lie  was  to  have,  and  B  died  first,  and  his  executors  sued 
A,  the  performance  of  B's  promise  to  act  as  A's  executor  having 
become  impossible,  it  was  held  that  the  consideration  luid  wholly 
failed. (_;■)  So  if,  in  an  action  on  a  note,  it  appears  tliat  for  a  def- 
inite part  the  note  was  for  a  consideration,  and  for  the  residue  an 
accommodation  note,  the  payee  recovers  only  for  that  part  which 
was  founded  upon  consideration. (^•) 

It  is,  however,  important  to  observe,  that  wlicre  a  partial  fail- 
ure of  the  consideration  is  alleged  by  the  defendant,  this  part 
must  be  distinct  and  definite,  for  only  a  total  failure  or  a  specific 
and  ascertained  failure  of  a  part  can  be  availed  of  by  way  of  de- 
fence. For  any  other,  the  defendant  can  only  have  his  set-off  or 
cross  action.  In  several  English  cases,  it  is  stated  generally  that 
a  partial  failure  of  consideration  is  no  defence  ;  but  they  all  turn 
upon  the  above  distinction. (/)     Thus,  it  is  always  a  good  defence, 


his  promissory  note,  and  the  patent  proved  to  be  void,  the  note  was  held  to  be  entirely 
without  consideration,  notwithstanding  tlie  vendor  covenanted  that  he  had  good  right 
to  sell  and  convey  the  patented  privileges,  and  that  he  would  warrant  the  same  against 
the  claims  of  all  persons.  The  court  were  of  opinion,  "  tiiat,  the  patent  right  being 
void,  there  was  a  total  want  of  consideration  for  the  defendant's  promissory  note,  unless 
the  plaintiff's  alleged  covenant  of  title  in  the  patent  right  constituted  a  consideration  ; 
that  sucii  a  covenant  would  not  constitute  a  valid  consideration,  for  the  object  of  the 
defendant  in  making  this  contract  was  to  obtain,  not  a  mere  covenant,  but  the  convey- 
ance of  a  patent  right;  that,  although  the  plaintiff  might  have  purchased  and  sold  the 
supposed  patent  right  tliinking  it  to  be  valual)le  property,  still  he  could  not  recover  in 
this  action,  for  the  defence  did  not  rest  on  the  ground  of  fraud,  but  on  the  ground  that 
the  defendant  had  received  no  value,  and  his  promise  was  nudum  pactum." 

(i)  See  Williams  v.  Hicks,  2  Vt.  36. 

(./)  Solly  V.  Hinde,  2  Cromp.  &  M.  516. 

{Ic)  Darnell  v.  Williams,  2  Stark.  166  ;  Barber  v.  Backhouse,  Peake,  61  ;  Cline  v. 
Miller,  8  Md.  274. 

{1}  Thus,  in  Morgan  v.  Richardson,  1  Camp.  40,  note,  which  was  an  action  against 
the  acceptor  of  a  bill  of  exchange  at  the  suit  of  the  drawer,  tiie  I)ill  being  payable  to  his 
own  order,  the  defence  was,  that  the  bill  had  been  accepted  for  the  price  of  some  hams 
bouglit  by  the  defendant  from  the  plaintiff,  to  be  sent  to  the  East  Indies ;  and  that  the 
hams  had  turned  out  so  very  bad  that  they  were  almost  quite  unmarketable.  The  sum 
for  which  they  actually  sold  was  paid  into  court.  Lord  EUenhoroH<ih  held,  that  though, 
where  the  consideration  of  a  bill  of  exchange  fails  entirely,  this  will  be  a  sufficient  de- 
fence to  an  action  upon  it,  l)v  the  original  party,  it  is  no  defence  to  such  action  that  the 
consideration  fails  partially  ;  but  that  under  such  circumstances  the  giver  of  the  bill 
must  take  his  remedy  by  an  action  against  the  person  to  whom  it  is  given.  So  in  Tye 
V.  Gwynne,  2  Camp.  346,  in  an  action  on  a  bill  of  exchange  accepted  for  the  price  of 
goods  purchased  for  exportation,  it  was  held,  that  the  purchaser  could  not  give  in  cvi- 


208  NOTES   AXD   BILLS.  [CH.  VL 

that  tno  contract  on  whicli  the  note  was  given  has  been  re- 
sehided ;  (di)    or   that  the   property   in   the   thing   sold    did   not 

dence  that  the  goods  were  of  a  bad  quality,  and  improperly  packed  ;  but  was  driven  to 
his  (TOSS  action.  Lord  EUenborowjh  said  :  "  Sitting  here,  I  sliall  certainly  adhere  to 
the  judgment  of  the  court  in  Morgan  v.  Richardson.  Although  money  was  there  paid 
into  court,  that  circumstance  formed  no  ingredient  in  the  opinion  1  then  expressed.  A 
bill  of  exchange  cannot  be  accepted  on  a  quantum  meruit.  There  is  a  difference  be- 
tween want  of  consideration  and  failure  of  consideration.  The  former  may  be  given 
in  evidence  to  reduce  the  damages  ;  the  latter  cannot,  but  furnishes  a  distinct  and  inde- 
pendent cause  of  action."  In  Obbard  v.  Betham,  Moody  &  M.  483,  in  an  action  by  the 
drawer  against  the  acceptor  of  bills  of  exchange  given  for  goods  supplied,  which  were 
to  be  "  of  good  quality  and  moderate  price,"  and  were  estimated  at  about  .£400,  and 
the  bills  given  for  that  amount ;  it  was  held  to  be  no  defence  that  the  goods  turned  out 
to  be  worth  much  less  than  the  estimated  price,  and  that  the  acceptor  had  paid  more 
than  the  real  value  of  the  goods  on  the  bills.  Lord  Tenterden  said  :  "  The  cases  cited 
for  the  plaintiffs  have  completely  established  the  distinction  between  an  action  for  the 
price  of  the  goods,  and  an  action  on  the  security  given  for  them.  In  the  former,  tho 
value  only  can  be  recovered  ;  in  the  latter,  I  take  it  to  have  been  settled  by  those  cases, 
and  acted  upon  ever  since  as  law,  that  the  party  holding  bills  given  for  the  price  of 
goods  supplied  can  recover  upon  them,  unless  there  has  been  a  total  failure  of  consider- 
ation. If  the  consideration  fails  partially,  as  by  the  inferiority  of  the  article  furnished 
to  that  ordered,  the  buyer  nmst  seek  his  remedy  by  a  cross  action.  The  warranty  relied 
on  in  this  case  makes  no  difference.  In  Morgan  v.  Richardson,  the  hams  bought  turned 
out  unmaiketable.  That  was  just  as  much  a  breach  of  warranty  as  there  is  in  the  pres- 
ent case  ;  for  every  man  selling  a  commodity  warrants  it  to  be  of  merchantable  quality; 
no  purchaser  buys  except  upon  that  understanding."  In  Day  v.  Nix,  9  J.  B.  Moore, 
159,  it  was  held,  that  a  partial  failure  of  consideration  for  a  promissory  note  constitutes 
no  ground  of  defence,  if  the  quantum  to  be  deducted  on  that  account  is  matter  not  of 
definite  computation,  but  of  unliquidated  damages  ;  as,  where  a  note  was  given  for  tho 
plaintiff's  disclosing  to  the  defendant  an  improvement  in  certain  machinery,  which 
tumed  out  to  i)e  less  beneficial  than  was  anticipated  by  the  parties  In  Trickey  v. 
Larne,  G  M.  &  W.  278,  to  an  action  by  drawer  against  accei)tor  of  a  bill  of  exchange 
for  £  20  8.S  6(/ ,  the  defendant  pleailed  that,  before  the  drawing  and  acce])tance  of  the 
bill,  it  wa-;  agreed  between  the  plaintiff  and  defendant  that  the  plaintiff  should  do  cer- 
tain carpenter's  work  for  the  defendant  for.£G3;  that  the  defendant  jiaid  the  plaintiff 
.£43  in  i»nrt  payment  of  the  £63,  and  afterwards  accepted  the  bill  of  exchange,  on 
account  of  the  residue  of  the  £C3  ;  that  tlic  plaintiff  did  not  ])erform  his  agreement, 
but  neglected  to  pciform  some  work,  and  performed  in  an  unworkmanlike  manner  other 
work,  necessary  to  be  done  under  the  agreement;  and  that  the  £43  was  more  than  the 
wliole  work  done  was  worth.  Held  bad,  on  motion  for  judgment  non  obstante  veredicto, 
as  disclosing,  not  a  total  failure  of  consideration  for  the  bill,  but  only  a  partial  failure 
of  the  consideration,  to  wliich  tlie  money  payment  and  the  bill  were  alike  ai]plicable. 
See  also,  Gascoyne  v.  Smith,  M'Cl.  &  Y.  338.  In  Warwick  r.  Nairn,  10  Exeh.  702, 
to  an  action  by  the  drawer  against  the  acceptor  of  a  bill  of  exchange  for  £313  12s.  9rf. 
the  defendant  pleaded,  except  as  to  £  108  15s.  3</.  parcel,  that  the  bill  was  drawn  and 
accepted  in  respect  of  tlie  price  of  certain  goods  sold  by  the  plaintiffs  to  the  defendant, 
and  for  no  other  d(!bt;  that,  at  the  time  of  sale,  the  plaintiffs  promised  the  defendant 
tliat  the  goo^s  should  be  of  a  certain  quality ;  that  he  bought  the  goods  and  accepted 

(m)  Benson  v.  Smith,  2  La.  102. 


ClI.  VI.]  FAILURE    OF    COXSIDERATION  209 

pass  ;  (ii)  or  that  it  is  wholly  witlioiit  value.  And  wo  should 
infer  from  what  seems  to  be  the  weight  of  authority,  that  it  is 
a  sufficient  defence,  that  the  title  of  the  vendor  has  wholly  failed, 


the  bill  on  the  faith  of  the  plaintiffs'  promise  ;  that  the  goods  delivered  were  not  of  tlie 
quality  speeitied,  but  of  inferior  quality,  and  that  they  were  of  the  value  of  .£  108  15s  :hi 
and  no  more  ;  and  that,  save  as  aforesaid,  theie  never  was  any  value  or  consideration 
for  the  making  or  accepting  the  said  bill  of  exchange.  Held,  on  demurrer,  that  the 
plea  was  bad.  Pei-  curiam:  "  The  j)laintirt's  are  entitled  to  judgment.  The  authorities 
are  decisive  that  this  plea  is  bad.  If  the  defendant  seeks  to  have  them  overruled,  he 
must  t;\ke  the  case  to  the  Court  of  Error."  Sully  /•.  Frean,  10  Exeh  .5.3.5.  is  to  the 
Same  effect.  In  Drew  v.  Towle,  7  Fost.  412,  it  was  /ifid,  that  a  partial  failure  of  con- 
sideration is  a  good  defence  to  a  promissory  note,  wiiere  the  amount  to  be  deducted  on 
that  account  is  matter  to  be  ascertained  by  mere  computation  ;  but  it  is  otherwise  where 
such  amount  depends  uj)on  the  ascertainment  of  unli(iuidated  damages.  In  Elminger 
V.  Drew,  4  McLean,  .388,  where  the  consideration  of  ilie  note  was  a  quantity  of  fish 
sold  by  the  payee  to  the  maker,  and  warranted  to  be  "  well  cured,  good,  sound,  and 
wholesome  ; "  it  was  held,  that  a  breach  of  this  warranty  was  no  defence  to  an  action 
on  the  note.  And  see,  to  the  same  effect,  Washburn  v.  Picot,  3  Dev.  390.  So  in 
Pulsifer  v.  Ilotchkiss,  12  Conn.  234,  it  was  /(?W,  that,  in  an  action  on  a  bill  or  note,  the 
defendant  cannot  show  a  partial  fiiilure  of  consideration  to  reduce  the  damages,  if  the 
quantum  to  be  deducted,  on  account  of  such  partial  failure,  is  not  of  definite  computa- 
tion, but  of  unliquidated  damages,  and  there  has  been  no  attempt  to  repudiate  the  con- 
tract or  restore  the  consideration.  Therefore,  where  A  had  sold  an  interest  in  a  patent 
right  to  B,  accompanied  with  a  false  representation  ;  and  the  interest  thus  sold  was  of 
some  value,  but  of  less  than  it  would  have  been  if  the  representation  had  been  true, 
but  the  difference  was  of  an  uncertain  and  unliquidated  amount,  and  B  did  not  repu- 
diate the  contract,  nor  offer  to  restore  the  interest  sold  ;  iti  an  action  on  a  promissory 
note  given  by  B  to  A  for  such  interest,  it  was  held,  that  B  could  not  avail  himself  of 
such  partial  failure  of  consideration  to  reduce  the  damages  below  the  sum  expressed  in 
the  note.  But  see  Andrews  v.  Wheaton,  23  Conn.  112.  In  Spalding  v.  Vandercook, 
2  Wend.  431,  where  the  consideration  of  the  note  declared  on  was  the  making  of  a 
quantity  of  provision  barrels  by  the  plaintiff  for  the  defendant,  under  an  agreement  to 
manufacture  the  same  so  that  they  would  pass  inspection  under  the  law  regulating  the 
inspection  of  beef  and  pork;  it  was  held,  that  the  defendant  might  show,  in  order  to 
reduce  the  amount  of  the  plaintift''s  recovery,  that  a  jiortion  of  the  barrels  were  manu- 
factured in  an  unskilful  manner,  and  not  in  compliance  with  the  terms  of  the  contract, 
whereby  tlie  defendant  lost  the  sale  of  the  same.  So  in  Harrington  v.  Stratton,  22 
Pick.  510,  in  an  action  by  the  payee  against  the  maker  of  a  promissory  note  given  for 
the  price  of  a  chattel,  it  was  held  competent  for  the  maker  to  prove,  in  reduction  of 
damages,  that  the  sale  was  effected  by  means  of  false  representations  of  the  value  of 
the  chattel,  on  the  part  of  the  payee,  although  the  chattel  had  not  been  returned  or  ten- 
dered to  him.  In  Peden  v.  Moore,  1  Stew.  &  P.  71,  it  was  held,  that  whenever  a  de- 
fendant can  maintain  a  cross  action  for  damages,  on  account  of  a  defect  in  personal 
property  jiurchascd  by  him,  or  for  a  non-compliance  by  the  plaintiff  with  his  ])art  of  the 
contract,  the  former  may,  in  defence  to  an  action  upon  his  note,  made  in  consequence 
of  such  purchase  or  contract,  claim  reduction  corresponding  with  the  injury  lie  has  sus- 
tained. And  see  Wadsworth  v.  Smith,  23  Maine,  562  ;  Hills  v.  Bannister,  8  Coweu, 
31  ;  Wade  v.  Scott,  7  Misso.  509  ;  Barr  v.  Baker,  9  Misso.  840. 

(n)  Reed  ;;.  Prentiss,  1  N.  H.  174. 

Vol.  L— 0 


210  NOTES   AND    BILLS.  [CH.  VI. 

even  if  he  is  liable  on  covenants  in  his  deed  ;  but  the  cases  cited 
in  our  note  will  show  that  this  is  not  certain.(o)  But  a  failure 
of  title  to  a  part  of  the  land,  or  incumbrance  upon  it,{p)  or  the 
exorbitant  price  of  the  goods,  or  that  they  were  damaged,  al- 
though supposed  to  be  sound,  would  not  be  a  defence.     Nor  will 

(o)  The  first  case  on  this  point  was  Frisbee  v.  Hoffnagle,  1 1  Johns.  50.  IL  gave  a 
promissory  note  to  F.  for  the  purchase-money  of  a  certain  piece  of  hind,  conveyed  by 
F.  to  H.  by  deed,  with  warranty ;  and  at  the  time  of  the  conveyance  tiiore  was  a  judg- 
ment against  F.,  under  which  the  land  was  afterwards  sold  <ind  conveyed.  In  an  action 
brought  by  F.  against  H.  on  the  note,  it  was  lidJ,  that  the  suit  could  not  be  maintained, 
as  the  consideration  of  the  note  had  wholly  failed,  the  title  of  H.  being  extinguished  by 
the  sale  under  the  judgment,  though  he  had  not  yet  been  evicted  by  the  ])urcliaser,  for 
he  was  liable  to  be  evicted,  and  was  responsible  to  him  for  the  mesne  profits.  The  doc- 
trine of  tills  case  has  generally  been  followed  substantially.  In  Rice  v.  Goddard,  14 
Pick.  293,  the  court  said  :  "  The  note  was  given  in  considci'ation  of  the  conveyance  of 
land  by  deed  with  the  usual  covenants  of  seisin  and  warranty.  The  title  to  the  land 
failed  entirely  ;  and  the  question  is,  whether  that  want  of  title  is  an  entire  want  of  con- 
sideration for  the  note,  so  as  to  render  it  nudum  pactum,  or  whether  tiie  covenants  were 
of  themselves  a  sufficient  consideration  to  support  the  promise.  It  was  decided  by  the 
court  in  Maine,  in  Lloyd  t'.  Jewell,  1  Greenl.  360,  that  the  covenants  were  a  sufficient 
consideration.  The  decisions  of  that  court  are  entitled  to  great  respect ;  the  opinion, 
however,  in  the  case  cited,  was  grounded  on  what  was  considered  to  be  the  settled  law 
of  Massachusetts;  but  though  there  have  been  dicta,  (Fowler  u.  Shearer,  7  Mass.  19; 
Phelps  V.  Decker,  10  Mass.  279,)  there  has  been  no  decision  in  this  State  to  that  effect, 
and  so  the  foundation  of  tlie  opinion  fails.  The  same  subject  has  been  before  the 
courts  of  other  States,  and  the  decisions  have  uniformly  been,  that  a  total  failure  of 
title  is  a  total  failure  of  the  consideration.  Frisbee  v.  Hoffnagle,  11  Johns.  50;  M'Al- 
lister  V.  Heab,  4  Wend.  483 ;  Steinhauer  v.  Witman,  1  S.  &  R.  447  ;  Gray  v.  Handkin- 
son,  1  Bay,  278;  Bell  v.  Huggins,  1  Bay,  327;  Cliandler  v.  Marsh,  3  Vt.  162  ;  Tillot- 
son  V.  Grapes,  4  N.  H.  448.  The  promise  is  not  made  for  a  promise,  but  for  the  land ; 
the  moving  cause  is  the  estate  ;  and  if  th.it  fails  to  pass,  the  promise  is  a  mere  nudum 
pactum.  It  was  objected,  that  the  rule  of  damages  in  an  action  on  the  covenant  would 
be  different  from  tiie  consideration  of  the  promise ;  but  in  the  case  of  a  total  failure  of 
title,  the  amount  of  damages  would  be  tiie  same  ;  and  it  is  just  that  a  party  should  be 
allowed  to  show  a  total  failure,  in  an  action  on  the  promise,  instead  of  being  com- 
pelled to  seek  his  remedy  on  the  covenants."  But  in  Hoy  v.  Taliaferro,  8  Smcdes  & 
M.  727,  it  was  held,  that  a  vendee  of  land  wiio  lias  received  a  deed  witii  covenants  of 
warranty,  and  been  let  into  possession,  cannot,  when  sued  at  law  on  tiie  notes  given  for 
the  purchase-money,  set  up  the  defence  of  failure  of  consideration,  without  showing  an 
actual  eviction.  See  further,  Knapp  v.  Lee,  3  Pick.  452  ;  Trask  v.  Vinson,  20  Pick. 
105  ;  Cook  V.  Mi.x,  11  Conn.  432  ;  Jenness  v.  Parker,  24  Maine,  289  ;  Drew  v.  Towle, 
7  Foster  412  ;  Tyler  v.  Young,  2  Scam.  444  ;  Gregory  v.  Scott,  4  Scam.  392  ;  Slack  v. 
McLagan,  15  111.  242  ;  Scudder  v.  Andrews,  2  McLean,  464.  But  sec  Young  v.  Tiip- 
leit,  5  Littcll,  247  ;  Culium  v  Branch  Bank,  4  Ala.  21 ;  Dunn  v.  White,  I  Ala.  645; 
Wilson  V.  Jordan,  3  Stew.  &  P.  92. 

(p)  Greenleaf  r.  Cook,  2  Wheat.  13;  Howard  r.  Witham,  2  Greenl.  390;  Went- 
worth  V.  Goodwin,  21  Maine,  150;  Morrison  i;.  Jewell,  34  Maine,  146;  Chase  v. 
Weston,  12  N.  H.  413;  Lattin  v.  Vail,  17  Wend.  188;  Jenness  r.  Parker,  24  Maine, 
289. 


CH.  VI.]  FAILURE   OF   CONSroERATION.  211 

a  court  of  equity,  where  tlie  failure  of  consideration  is  unliqui- 
dated, restrain  an  action  on  the  note  and  bill,  and  order  an  ac 
count.(<7) 

It  is  certain  that  a  mere  inadequacy  of  value  is  not  the  same 
as,  and  has  not  the  effect  of,  a  total  or  a  partial  failure  of  consid- 
eration, (r)  And  we  apprehend  that  the  difficulty  of  discrimi- 
nating between  inadequacy  and  partial  failure  has  been  a  princi- 
pal cause  of  the  conflict  among  the  American  cases  as  to  the  effect 
of  a  partial  failure  of  consideration.  They  cannot  be  wholly 
reconciled ;  but  we  believe  that  the  principles  we  have  stated 
above  are  sustained  by  the  weight  of  authority.  It  is  quite  cer- 
tain, not  only  that  fraud  would  always  be  a  good  defence,  but 
that  extreme  inadequacy  of  value  might  be  evidence  of  fraud,  and 
the  evidence  would  be  stronger  as  this  inadequacy  was  greater. 

A  partial  want  of  consideration,  like  a  partial  failure,  is  a  good 
defence  pro  tanto.  But  a  distinction  is  to  be  observed  between 
the  two.  A  partial  failure  of  consideration,  as  we  have  seen, 
furnishes  no  defence,  unless  the  amount  is  ascertained  and  liqui- 
dated. But  when  there  is  originally  a  partial  want  of  consider- 
ation, that  will  be  a  good  defence  pro  tanto  in  all  cases.  Thus, 
if  a  note  be  given  by  a  father  to  a  son,  partly  in  payment  for  ser- 
vices and  partly  as  a  gratuity,  so  far  as  it  is  given  upon  the  latter 
ground  it  is  without  consideration,  and  this  will  be  a  good  de- 
fence. And  it  is  no  objection,  that  there  was  no  agreement  or 
understanding  of  the  parties,  or  any  act  or  declaration  of  the 
maker,  to  designate  what  part  of  the  aggregate  amount  of  the 
note  was  intended  to  be  a  compensation  for  services,  and  what 
part  to  be  a  gratuity.  Tlie  question,  what  amount  was  founded 
on  one  consideration  and  what  on  the  other,  is  to  be  settled  by 
the  jury  upon  the  evidence,  (s) 


(9)  Glennie  v.  Imri,  3  Younge  &  C,  Exch.  436. 

(r)  Solomon  v.  Turner,  1  Stark.  51. 

(s)  Parish  v.  Stone,  14  Pick.  198.  In  this  case,  Shaw,  C.  J.,  after  citing  the  English 
cases,  which  establish  the  doctrine  that  a  partial  failure  of  consideration  furnishes  no 
defence,  unless  the  amount  is  liquidated,  said  :  "All  the  cases  put  are  those  of  failure 
of  consideration,  where  the  consideration  was  single  and  entire,  and  went  to  the  whole 
note,  and  was  good  and  sufficient  at  the  time  the  note  was  given,  but  by  some  breach 
of  contract,  mistake,  or  accident,  had  afterwards  failed.  There  the  rule  is,  if  the  con- 
sideration has  wholly  failed,  or  the  contract  been  wholly  rescinded,  it  shall  be  a  good 
iefence  to  the  note.  But  if  it  have  partially  failed  only,  it  would  tend  to  an  incon- 
Tenient  mode  of  trial  and  to  a  confusion  of  rights  to  try  such  question  in  a  suit  on  the 
no*s,  as  a  partial  defence,  and  therefore  the  party  complaining  shall  bo  left  to  his  cross 


212  NOTES   AND    BILLS.  [CH.  VL 

SECTION    III. 

OF    ILLEGAL    CONSIDERATION. 

An  illegal  consideration  is  a  void  one,  for  the  reason  that  the 
law  cannot  recognize  a  value  in  that  which  it  forbids,  nor  enforce 


action.  This  distinction,  and  the  consequence  to  be  drawn  from  it,  are  alluded  to  by 
Lord  Ellenboioutjii  in  Tye  v.  Gwynne,  2  Camp.  346.  He  says  :  '  There  is  a  difference 
between  want  of  consideration  and  failure  of  consideration.  The  former  may  be  given 
in  evidence  to  reduce  the  damages  ;  the  latter  cannot,  but  furnishes  a  distinct  and  inde- 
pendent cause  of  action.'  It  seems,  therefore,  very  clear,  that  want  of  consideration, 
either  total  or  partial,  may  always  be  shown  by  way  of  defence  ;  and  that  it  will  bar  the 
action,  or  reduce  the  damages,  from  the  amount  expressed  in  the  bill,  as  it  is  found  to 
be  total  or  partial  respectively.  It  cannot,  therefore,  in  such  case,  depend  upon  the 
state  of  the  evidence,  whether  the  different  parts  of  the  bill  were  settled  and  liquidated 
by  the  parties  or  not.  Where  the  note  is  intended  to  be  in  a  great  degree  gratuitous, 
the  parties  would  not  be  likely  to  enter  into  very  particular  stipulations  as  to  what 
should  be  deemed  payment  of  a  debt,  and  whal  a  gratuity.  The  rule  to  be  deduced 
from  the  cases  seems  to  be  this,  —  that  where  the  note  is  not  given  upon  any  one  con- 
sideration, which,  whether  good  or  not,  whether  it  fail  or  not,  goes  to  the  whole  note  at 
tlie  time  it  is  made,  but  for  two  distinct  and  independent  considerations,  each  going  to 
a  distinct  portion  of  the  note,  and  one  is  a  consideration  which  the  law  deems  valid  and 
sufficient  to  support  a  contract,  and  the  other  not,  —  there  the  contract  shall  be  appor- 
tioned, and  the  holder  shall  recover  to  the  extent  of  tlie  valid  consideration,  and  no 
further.  In  the  application  of  this  principle,  there  seems  to  be  no  reason  why  it  shall 
depend  upon  the  state  of  the  evidence,  showing  that  these  different  parts  can  i)e  ascer- 
tained by  computation  ;  in  other  words,  whether  the  evidence  shows  them  to  be  respec- 
tively liquidated  or  otherwise.  If  not,  it  would  seem  that  the  fact,  what  amount  was 
upon  one  consideration,  and  what  upon  the  other,  like  every  other  questionable  fact, 
should  be  settled  by  the  jury  upon  the  evidence.  This  can  never  operate  hardly  upon 
the  holder  of  the  note,  as  the  presumption  of  law  is  in  his  favor  as  to  the  whole  note  ; 
and  the  burden  is  upon  the  defendant  to  show  to  what  extent  the  note  is  without  con- 
sideration. Suppose  a  father  proposes,  upon  his  son's  going  into  business,  to  aid  iiira 
by  an  advance  of  several  thousand  dollars,  and  for  that  jiurpose  gratuitously  offers  him 
his  note  for  that  sum  ;  but  as  his  son  had  performed  services  to  the  value  of  a  few  dol- 
lars, for  which  no  price  was  agreed,  upon  giving  his  note,  the  father,  intending  to  cancel 
and  discharge  that  and  all  other  claims,  takes  a  general  receipt  for  all  services  and  other 
dues,  and  afterwards,  the  note  not  having  been  negotiated,  a  suit  should  be  brought  on 
it  by  the  payee  against  the  maker,  might  not  the  defendant  show  the  want  of  considera- 
tion by  way  of  defence  pro  tanto?  and  yet  the  amount  must  he  settled  by  a  jury,  the 
evidence  of  the  original  agreement  not  distinguishing  between  what  was  payment  and 
what  was  gratuity."  And  see,  to  the  same  effect,  Loring  v.  Sumner,  2.3  Pick.  98  ; 
Folsom  V.  Mu.ssey,  8  Greenl.  400;  Stevens  v.  Mclntirc,  14  Maine,  14.  In  Forman  v. 
Wright,  11  C.  B.  481,  to  a  count  on  a  promissory  note,  the  defendant  pleaded  that  ho 
"  was  indel)ted  to  one  F.  in  the  sum  of  £  10  ]4s.  lid.,  and  no  more ;  that  the  plaintiff 
frau<lulcntiy,  dccciifully,  and  falsely  represented  to  tlic  defendant  that  (here  was  due 
from  the  defendant  to  F.  the  sum  of  £32  6s.  lOt/.,  and  then  demanded  cf,  and  by 


CH.  VI.]  ILLEGAL   CONSIDERATION.  213 

an  obligation  which  it  prohibits  every  one  from  assuming  or  dis 
charging. 

This  iHegality  may  consist,  first,  in  the  violation  of  some  posi- 
tive statute  law.  As  that  prohibiting  gaming,  or  issuing  of 
private  bills  or  notes  as  currency,  in  some  of  the  States,  or  work 
on  Sunday.  As  to  this  last,  it  may  be  observed  that  the  English 
and  the  prevailing  American  rule  always  was,  that  contracts 
made  in  breach  of  the  Sunday  law  were  void.(^)  But  in  Massa- 
chusetts tlie  rule  formerly  was,  that  the  contract,  or  instrument, 
—  a  note  of  hand,  for  example,  —  was  valid,  but  the  party  was 
punishable  for  the  offence  of  making  it.(w)  Now,  however,  tlie 
law  in  Massachusetts  is  the  same  as  that  above  stated. (u)  So,  a 
contract  in  violation  of  the  statutes  for  the  prevention  of  intem- 
perance cannot  be  enforced, (?^)  or  a  contract  for  smuggling,  or 
for  compounding  felonies.  It  is  an  illegality  which  avoids  a  con- 
tract, if  it  violates  the  requirements  or  prohibitions  of  a  statute, 
although  these  are  not  so  expressed,  if  they  are  certainly  im- 
plied ;  and  the  general  doctrine  now  is,  that  an  act  to  which  a 
penalty  is  annexed  is  prohibited. (.-c)  We  do  not  think  it  desira- 
ble to  go  into  details  upon  this  head,  for  they  must  depend  upon 
the  fluctuating  and  very  various  provisions  of  the  statutes  of  the 
several  States.  Usury,  one  of  the  most  important  among  them, 
we  shall  discuss  in  connection  with  interest. 

It  may  be  well  to  remark  here,  as  particularly  applicable  to 
illegalities  of  this  kind,  although  by  no  means  confined  to  them, 
that  a  contract  which  is  intended  to  lead  to  and  facilitate  a 


means  of  such  representation  as  aforesaid  induced,  the  defendant  to  deliver  to  liim  the 
note  in  thi;  first  count  mentioned."  It  was  proved,  and  found  by  the  jury,  that  the  note 
was  obtained  by  a  false  representation  by  the  plaintiff  that  £32  6s.  lOd.  was  due,  but 
that  such  representation  had  been  made  without^  fraud.  Held,  that  the  evidence  sus- 
tained the  })l('a;  for  that  the  words  "  fraudulently  and  deceitfully"  might  be  rejected, 
and  that  the  plea  was  in  substance  a  plea  of  partial  want  of  consideration.  Crcsswell, 
J.  said :  "  The  decision  the  court  now  come  to  does  not  in  any  degree  interfere  with 
the  doctrine,  that  a  small  consideration  may  sustain  a  larger  promise.  Where  there  is 
a  promise  to  pay  a  certain  sum,  all  being,  as  in  this  case,  supposed  to  be  due,  each  part 
of  the  money  expressed  to  be  due  is  the  consideration  for  each  part  of  the  promise 
md  the  consideration  as  to  any  part  failing,  the  promise  is,  pro  tanto,  nudum  pactum." 

(t)  See  2  Parsons  on  Cont.,  2d  ed.,  p.  262,  et  seq. 

(«)  Gecr  V.  Putnam,  10  Mass.  312. 

(v)  ^ttee  ".  Greely,  13  Met.  284.     See  Barrett  v.  Hyde,  7  Gray,  160. 

(w)  Wbe  V.  Burnham,  11  Post.  426. 

(x)  See  I  Parsons  on  Cont.,  pp.  381,  382. 


214  NOTES   AND   BILLS.  [CH.  VL 

breach  of  law,  is  also  void  for  illegality,  unless  it  produces  this 
effect  indirectly  and  remotely.  Thus,  if  money  be  lent  to  a  man 
expressly  to  game  with,  and  the  borrower  give  his  note  for  it,  the 
note  cannot  be  enforced. (y)  But  it  would  not  be  defence  enough, 
that  thj  borrower  was  known  to  be  a  gambler,  and  that  any  one 
lending  him  money  might  expect  that  it  would  go  to  the  gaming- 
table, and  that  this  money  did  go  there. 

Secondly,  the  illegality  may  consist  in  the  violation  of  the  laws 
of  religion,  morality,  or  decency ;  for  the  general  and  funda- 
mental principles  of  these  may  be  considered  as  incorporated  into 
the  common  law.  For  example,  a  note  for  future  illicit  cohabit- 
ation is  void.(5:)  So  it  would  be  void  if  for  rent  of  lodgings  for 
the  purpose  of  prostitution. (a)  A  note  given  for  past  illegal  co- 
habitation is  not  void  for  illegality ;  for  the  law  does  not  prohibit 
any  one  who  has  done  a  great  wrong  from  offering  some  indem- 
nity for  it.  But  such  a  note,  being  a  simple  contract,  cannot  be 
enforced,  for  the  reason  that  the  consideration  is  entirely  passed 
and  executed,  such  a  consideration  not  being  sufficient  to  sup- 
port a  simple  contract.  It  would  be  otherwise,  if  a  bond  or  other 
contract  under  seal  were  given,  instead  of  a  note. (6) 

Thirdly,  the  illegality  may  consist  in  an  opposition  to  public 
policy ;  for  this  the  law  must  always  protect.  As  a  contract  in 
restraint  of  trade,  without  reasonable  limitation  of  place  or 
time ;  (c)  or  any  contract  restraining  or  preventing  marriage, 
even  for  a  time ;  or  one  of  that  kind  known  in  English  law  as  a 
contract  of  marriage  brokerage,  or  brokage ;  that  is,  a  contract 
wherein  one  promises  to  assist  another  in  accomplishing  a  mar- 
riage, where  the  promisor  has  no  right  of  interference,  or  does  in- 
terfere or  may  be  supposed  to  interfere  corruptly. (</)  Contracts 
to  procure  offices  or  votes,  or  for  bribes  of  any  kind,  which  in 
some  States  are  expressly  forbidden,  are  void  everywhere. (p)     So 

iy)  Cannan  v.  Bryce,  3  B.  &  Aid.  179  ;  M'Kinnell  v.  Robinson,  3  M.  &  W.  434; 
Mordecai  v.  Dawkins,  9  Kich.  262. 

(z)  WiilktT  i:  Perkins,  3  Burr.  1568;  Friciul  v.  Harrison,  2  C.  &  1'.  r)84. 

(a)  Girarday  v.  Ilicliardson,  I  Ksp.  13  ;  Jonninf^s  v.  Thro{;morton,  Hyan  &,  M.  251. 

{b)  See  Binninfrton  i;.  Wailis,  4  B.  &  Aid.  G.51  ;  Gibson  v.  Dickie,  3  Maule  &  S.  463 ; 
Nye  V.  Moseley,  6  B.  &  C.  133;  Beaumont  j;.  Reeve,  8  Q.  B.  483. 

(c)  Al(,'er  i;.  Tliattlier,  19  Pick.  51.     See  2  Parsons  on  Cont.  253,  ct  mtj. 

{d)  Peyton  i-.  Bladwell,  1  Vern.  240.     See  1  Parsons  on  Cont.  555,  550. 

(e)  Marsliail  v.  Baltimore  &  Ohio  R.  R.  Co.,  16  How.  314,  334  -  .336 ;  Clippingcr 
V.  Hcpliaugli,  5  Watts  &  S.  315;  Harris  v.  Roof,  10  Barb.  489;  Rose  o.  Trua.x,  21 
Barb.  361.     See  Horn  v.  Tontz,  4  Calif.  321. 


CH.  VI.]  ILLEGAL   CONSIDERATION.  215 

are  those  to  suppress  evidence,  or  to  interfere  in  any  way  with 
the  course  of  justice,  wliether  within  the  terms  of  any  statute  or 
not.(/)  But  a  note  for  compounding  a  strictly  private  misde- 
meanor is  good  at  common  law ;  (g-)  and  in  some  of  the  States 
this  kind  of  composition  is  favored  and  regulated  hy  statute.  So 
a  note,  after  conviction,  for  the  legal  costs  and  expenses  of  the 
prosecution,  may  he  good.{h)  And  it  is  said,  that  if  one  sells 
goods,  with  the  distinct  knowledge  that  an  illegal  use  is  to  be 
made  of  them,  but  without  the  promise  or  purpose  of  rendering 
personal  aid,  a  note  founded  on  this  contract  will  be  good.(i) 
But  this  rule  cannot  be  universal,  and  we  should  indeed  regard 
it  as  exceptional,  if  not  doubtful.  So  if  one  receives  a  good  bill 
in  substitution  for  one  that  is  forged,  at  the  request  of  the  forger, 
it  is  said  to  be  valid,  if  there  were  no  stipulation  to  stifle  prose- 
cution for  the  forgery ;  (j)  but  the  new  bill  would  not  bo  given 
unless  the  forged  bill  wore  surrendered,  and  if  this  were  done, 
such  a  stipulation  would  seem  to  be  a  necessary  implication,  for 
the  principal  evidence  is  destroyed. 

Wagers  generally,  now  indeed  almost  universally,  are  not  en- 
forceable contracts ;  nor  could  a  note  in  payment  of  a  mere 
wager  be  enforced  between  the  parties. (/i;)  But  they  are  not  ille- 
gal, and  money  paid  on  tliem  with  full  knowledge  of  the  facts, 
although  with  ignorance  of  the  law,  which  prevented  any  legal 
obligation,  could  not  be  recovered  back.  If,  however,  the  bet 
or  wager  was  one  which  itself  violated  decency,  or  public  pol- 
icy, as  a  wager  about  the  sex  of  any  person  ;  or  as  to  their 
marriage,  or  having  children  ;  or  on  the  result  of  an  elec- 
tion ;  or  of  a  criminal  or  perhaps  of  any  trial ;  —  in  these  cases, 
not  only  would  the  note  be  void  between  the  parties  to  it, 
but,  if  discharged  by  payment,  the  money  should  be  recov- 
erable, unless  where  this  was  prevented  by  the  rule  that,  both 


(/)  Nerot  V.  Wallace,  3  T.  R.  1 7 ;  Edgcombe  v.  Rodd,  5  East,  294 ;  Coppock  v. 
Bovver,  4  M.  &  W.  .361  ;  Swan  v.  Cliandlcr,  8  B.  Mon.  97  ;  Clark  v.  Bicker,  14  N.  H. 
44  ;  Commonwealth  v.  Johnson,  3  Cush.  454 ;  Gardner  v.  Maxey,  9  B.  Mon.  90;  Hines- 
burgh  V.  Sumner,  9  Vt.  23. 

(.7)  Dra<;e  v.  Ibhorson,  2  Esp.  643;  Fallowes  v.  Taylor,  7  T.R.  475. 

(/()  Beelcy  v.  Wingfield,  11  East,  46  ;  Keir  i'.  Leeman,  9  Q.  B.  394  ;  Kirk  v.  Stricfc 
wood,  4  B.  &  Ad.  421 ;  Baker  v.  Townshend   I  J.  B.  Moore,  120. 

(i)  Hodgson  v.  Temple,  5  Taunt.  181. 

{j)   Wallace  v.  Hardacre,  1  Camji.  4.5. 

{k)  See  2  Parsons  onX^ont.,  261,  262. 


216  NOTES  AND   BILLS.  [CH.  VL 

parties  being  in  pari  delicto,  neither  could  have  a  remedy 
against  the  other. 

Under  this  head  of  puMic  policy  comes  that  class  of  cases 
in  which  a  fraud  is  committed  or  attempted  against  creditors. 
Thus,  if  one  creditor  secures  any  advantage  over  the  others, 
which  is  concealed  from  them,  and  then  enters  into  a  composi- 
tion or  arrangement,  in  which  they  seem  to  stand  on  the  same 
ground ;  or  if  he  has  anything  given  him  as  an  inducement  to 
accede  to  tlie  composition,  and  so  bring  others  in  ;  or  if  there  be 
a  bankruptcy,  and  the  cousideration  be  withdrawing  or  suppress- 
ing objection  to  a  certificate  or  discharge  of  the  delttor  ;  —  in  any 
of  these  cases  a  uote  given  for  sucli  a  consideration  woidd  l)e 
void.(/)  Aud  if  a  note  be  given  by  a  third  person,  who  is  indenv 
nified  by  the  debtor,  it  cannot  be  enforced  against  the  maker,  be- 
cause it  is  void  from  the  beginning.(w)  In  England,  it  was  held 
that,  if  the  creditor  of  a  bankrupt  act  as  commissioner,  and  take 
a  note  for  his  debt  while  the  commission  is  going  forward,  he 
cannot  enforce  it,  because  the  maker  could  uot  tlien  be  consid- 
ered as  a  free  agent. (w)  So  if  a  third  person  pay  money  for  such 
illegal  purpose,  and  the  debtor  give  him  a  note  therefor,  the  note 
cannot  be  enforced. (o) 

Trading  with  an  enemy,  as  we  liave  seen,  is  illegal,  and  there- 
fore notes  and  bills  given  in  the  course  of  such  trading  shonld 
be  held  void ;  but  a  distinction  has  been  taken,  and  it  is  said  that 
a  bill  drawn  on  an  alien  enemy  is  justified  by  practice,  and  is 
legal. (/»)  Certainly  it  would  be  if  drawn  for  payment  of  sup- 
plies which  it  was  legal  to  furnish,  as  to  a  cartel  or  licensed 
ship.(^)  The  sale  of  a  license,  which  was  once  held  to  1)0  le- 
gal,(r)  was  afterwards,  by  the  Supreme  Court  of  the  Ujiited 
States,  held  to  be  illegal ;  and  a  note  given  for  it  would  be 
void.(6') 


(/)  Cockshott  V.  Bennett,  2  T.  R.  763 ;  Kni^ijlit  v.  Hunt,  5  Bini;.  432 ;  Bryant  v. 
Christie,  1  Stark.  .329  ;  Sumner  v.  Brady,  1  U.  Bl.  647  ;  Rice  v.  Muxwell,  13  S.  &  M. 
289  ;  Sharp  v.  Tcesc,  4  Ilalst.  352. 

(ill)  Bryant  v.  Christie,  1  Stark.  329. 

(u)   MaywDoil  i;.  Chainhers,  .5  B.  &  Aid.  753 

(o)  Bryant  v.  Christie,  1  Stark.  329. 

(/>)   United  States  v.  Barker,  1  I'aine,  C.  C  156. 

(r/)   Suckley  i;.  Furse,  15  Jolins.  338. 

(i)  Coolid;,'C  V.  In^lec,  13  Mass.  26. 

(«)  Patton  V.  Nieliolson.  3  Wheat.  204. 


CH.  VI.]  ILLEGAL   CONSIDERATION.  217 

If  the  consideration  be  in  part  illegal,  and  in  part  not,  it  seems 
that  the  rule  in  case  of  partial  failure  of  consideration  does  not 
apply  ;  but  the  whole  contract  is  tainted  and  avoided  by  that  pari 
of  the  consideration  which  is  in  violation  of  law.(/)  Still,  how- 
ever, although  a  note  on  such  mingled  consideration  would  be 
void,  the  fact  of  its  nullity  would  leave  the  parties  where  they 
were  before,  or  would  be  without  it.  And  if  any  good  an^  legal 
consideration  passed  between  the  parties,  a  proper  action,  as  for 
money  lent,  for  example,  if  that  were  suitable,  might  be  main- 
tained thereon. (m)  If  a  note  or  bill  be  given  for  a  consideration 
which  is  in  part  illegal,  a  new  note  for  the  same,  or  in  renew^al 
of  the  first,  is  equally  void.(t;)  But  a  new  note  for  that  part  of 
the  consideration  which  is  legal,  is  good  and  valid.  And  if  sev- 
eral new  notes  are  given  for  the  old  one,  some  of  the  now  ones 
may  be  taken  to  be  for  the  legal  part,  and  so  valid  ;  especially  if 
they  are  only  adequate  to  this  part,  or  if  the  deduction  be  other- 
wise fixvorcd  by  circumstances. (li?) 

If  a  debtor  assigns  and  transfers  to  a  bona  fide  creditor  a  debt 
founded  upon  an  illegal  consideration,  and  this  illegal  debtor 
gives  his  note  accordingly  to  the  assignee  of  his  creditor,  and  is 
discharged  by  his  creditor,  the  note  will  be  enforced  against  him  ; 
for  though  the  consideration  between  him  and  the  assignor  is 
illegal,  that  between  him  and  his  promisee  is  not  illegal. (.r) 

Whether,  if  a  note  be  good  in  its  inception,  and  afterwards, 
by  sundry  transfers,  it  reaches  a  buna  fide  and  innocent  holder 
for  value,  he  is  prevented  from  enforcing  it  against  the  maker,  in 
consequence  of  one  of  the  intervening  transfers  being  for  an 
illegal  consideration,  may  not  be  quite  certain.  It  has  been  said, 
that  if  the  indori<ements  are  blank,  the  holder  may  fill  an  earlier 
one  to  himself,  and  so  recover ;  but  if  they  are  in  full,  or  he  is 
fur  any  reason  obliged  to  derive  his  title  through  the  illegal  trans- 
fer, he  cannot  sue.(//)  We  think,  that  in  either  case,  and  equally, 
this  illegal  transfer  is  no  bar  or  defence  whatever.     Indeed,  it 

(t)   Scott  V.  Gillmorc,  3  Taunt.  226. 

(«)  Utica  Ins.  Co.  v.  Kip,  8  Cowen,  20;  Robinson  i".  Bland,  2  Burr.  1077. 

(v)  Ciiapman  v.  Black,  2  B.  &  Aid.  588;  Wynne  v.  Callander,  1  lluss.  293 ;  Treston 
p.  Jackson,  2  Stark.  237. 

(w)  Huhner  v.  Richardson,  Bayley  on  Bills,  2d  Am.  cd.,  570  ;  Crooksliank  v.  Rose 
S  C.  &P.  19. 

(x)  Bowen  v.  Do-^gctt,  2  Nott  &  McC  127. 

[y)  See  Story  on  Prom.  Notes,  §  193. 

VOL    I.  19 


218  NOTES   AND   BILLS.  [CH.  VI. 

might  be  difficult  to  see  why  the  very  indorsee  for  illegal  consid- 
eration might  not  sue  the  maker,  if  his  indorser  had  an  unques- 
tionable claim,  and  had  voluntarily  passed  the  paper  from  him- 
self to  this  indorsee.  The  indorsee  cannot  in  such  a  case  sue  the 
indorser ;  but  we  incline  to  think  that  he  may,  by  the  indorser's 
title,  sue  a  previous  party. (0) 

Where  notes  are  made  void  by  express  statute,  they  cannot 
become  good  in  the  hands  of  subsequent  holders ;  and  upon  no 
such  note  can  a  subsequent  holder  have  a  valid  claim  against  the 
maker ;  but  if  he  holds  the  note  for  value  and  in  good  faith,  he 
may  have  a  valid  claim  against  his  own  indorser,  either  as  the 
maker  of  a  new  note  or  the  drawer  of  a  new  bill,  or  else  upon 
the  consideration  which  passed  between  them. (a) 


SECTION     lY. 

OF  TRANSFERS  FOR  ANTECEDENT  DEBTS,  OR  FOR  SECURITY. 

In  all  cases  where  the  note  is  not  made  void  by  law,  but  is 
void  as  between  the  parties  to  it,  for  want,  or  failure,  or  illegality 
of  consideration,  it  becomes  a  good  note  or  bill,  as  against  all 
parties,  in  tlie  hands  of  a  subsequent  holder,  provided  tlie  note 
or  bill  was  indorsed  over  before  it  was  dishonored,  and  provided 
also  it  was  indorsed  over  for  a  sufficient  consideration.  The  first 
of  these,  relating  to  the  time  when  the  indorsement  must  be 
made,  will  be  considered  hereafter.  In  regard  to  the  second, 
there  is  some  conflict  and  uncertainty  as  to  whether  either  pay- 


(2)  See  Knights  v.  Putnam,  3  Pick.  184;  Parr  v.  Eliason,  1  East,  92;  Daniel  w. 
Cartony,  I  Esp.  274.  But  see  Lowes  i;.  Ma/.zaredo,  1  Staik.  385.  This  question 
usually  arises  in  cases  of  usury,  and  we  shall  consider  it  more  fully  when  we  como  to 
treat  of  that  sui)ject. 

(a)  In  Edwards  v.  Dick,  4  B.  &  Aid.  212,  in  an  action  against  the  drawer  of  a  hill 
of  exchange,  it  was  luld  to  be  no  defence  tliat  the  hill  was  drawn  and  accci)ted  for  a 
gaminfj-deht ;  it  having  been  indorsed  over  by  the  drawer  for  a  valuable  consideration 
to  a  third  person,  by  whom  the  action  was  brought.  So  in  Johnston  v.  Dickson,  1 
Blackf.  256,  in  an  action  by  the  bona  fide  assignee  of  a  promissory  note  against  tho 
assignor,  it  was  hi-ld  to  he  no  defence  that  the  note  was  originally  given  by  the  maker 
to  the  defendant  for  an  illegal  consideration.  Wo  shall  consider  this  and  other  (lU"" 
tioos  relative  to  the  rights  of  a  bona  fide  holder  more  fully  in  the  eh...' 
subject. 


CH.  VI.]      TRANSFERS  FOR  ANTECEDENT  DEBTS,  ETC.         219 

meat  of,  or  security  for,  a  previously  existing  debt,  is  such  a 
consideration  as  protects  tlie  indorsee  or  holder. 

The  general  question  presents  itself  under  three  aspects.  One, 
where  negotiable  paper  is  received  in  payment  of  an  antecedent 
debt.  Another,  where  it  is  received  as  collateral  security  for  an 
antecedent  debt.  A  third,  wlicre  it  is  received  as  collateral  secu- 
rity for  a  debt  or  contract  which  is  simultaneous  with  the  trans- 
fer of  the  paper.  The  question  arises  in  no  otlier  cases,  for  if 
negotiable  paper  be  indorsed  and  given  outright  for  a  debt  con- 
tracted at  the  time,  or  in  pursuance  of  a  contract  tlien  executed, 
this  is  certainly  a  valid  consideration  ;  and  the  real  question  is, 
whether  only  this  constitutes  such  a  consideration. 

Tiie  doctrine,  that  none  of  the  three  considerations  above  men- 
tioned are  sufficient,  rests  upon  two  grounds,  which  are  quite  dis- 
tinct. One  of  these  is,  that  the  transferee  of  the  paper,  as  he 
gives  for  it  no  new  consideration,  is  not  injured  by  losing  it;  or 
rather,  tliat  if  it  be  taken  away,  he  has  all  that  he  had  before  he 
received  it ;  and  consequently  his  title  or  interest  is  no  better 
than  his  indorser's,  and  whatever  defence  a  prior  party  could 
make  against  that  indorser,  the  same  may  now  be  made  against 
him ;  and  if  it  be  made  successfully,  and  he  loses  the  paper,  he 
falls  back  on  the  debt  due  to  him  from  the  indorser,  which  is  just 
as  good  as  it  was  before. 

Tlie  other  objection  is,  that  none  of  these  three  transactions 
is  within  the  original  purpose  or  true  function  of  negotiable  pa- 
per. Such  paper,  it  is  held,  is  made,  in  the  first  instance,  for 
goods  bought,  or  otherwise  on  a  bargain  simultaneous  with  it ; 
and  afterwards  it  may  be  negotiated  by  the  payee,  that  is,  given 
by  him  in  a  transaction  like  that  in  wliich  he  received,  sold,  or 
discounted  it,  in  either  of  which  cases  the  property  passes  abso- 
lutely for  a  present  consideration.  And  anything  else  than  this 
is  irregular  ;  is  not  a  business  transaction  ;  no  proper  negotiation 
of  negotiable  paper,  and  no  such  use  of  that  paper  as  is  contem- 
plated by  tlie  peculiar  principles  or  privileges  of  negotiable  paper ; 
and  therefore  these  principles  or  privileges  do  not  attach  to  it, 
but  it  is  open  in  the  hands  of  the  assignee  to  all  the  defences 
which  could  have  been  made  against  it,  had  it  continued  in  the 
hands  of  the  assignor. 

We  very  much  doubt  tlie  adequacy  of  either  of  these  reasons, 
in  either  of  these  cases.     As  to  the  first  reason,  it  may  sometimes 


220  NOTES   AND    BILLS.  [CH.  M. 

be  applicable  in  part,  but,  as  we  should  suppose,  very  seldom. 
"We  have  already  seen,  that  a  note  indorsed  and  given  for  an  ante- 
cedent debt  is,  under  some  circumstances  at  least,  certainly  good  ; 
and  where  it  constitutes  an  absolute  payment  of  that  debt,  it  must 
unquestionably  be  so.  But,  in  general,  we  suppose  it  would  be 
very  seldom  true  in  fact,  that  a  note  indorsed  and  given  for  an 
antecedent  debt,  as  security  or  otherwise,  or  as  security  for  a 
simultaneous  debt,  can  be  withdrawn  or  annulled,  and  leave  the 
party  receiving  it  as  well  situated  as  before.  He  has,  it  is  true, 
his  whole  claim  against  the  transferrer ;  but  he  docs  not  hold  it 
under  so  favorable  circumstances.  In  the  great  majority  of  cases, 
the  transfer  is  in  execution  of  a  bargain,  by  which  something  is 
gained  by  the  transferrer  ;  either  delay  or  forbearance,  or  further 
credit,  or  the  giving  up  by  the  transferee  of  other  means,  or  de- 
clining to  use  otlier  opportunities  of  indemnity  or  security.  If 
the  rule  was  confined  to  those  cases  to  which  it  is  strictly  appli- 
cable, we  apprehend  that  it  would  be  found  to  have  a  very  limited 
operation.  It  would  be  one  thing  to  hold,  that  an  indorsee  of 
negotiable  paper,  who  can  surrender  it  and  be  in  all  respects  as 
well  situated  as  if  he  had  not  taken  the  paper,  should  be  open  to 
the  defences  available  against  his  indorscr.  But  it  would  be  a 
very  different  thing  to  hohl,  that  all  indorsees  for  an  antecedent 
debt,  or  for  collateral  security,  are  in  this  position. 

As  to  the  other  reason,  that  these  are  not  regular  business 
transactions,  or,  as  is  sometimes  said,  that  these  transfers  are  not 
made  in  due  course  of  business,  we  think  the  supposition  on 
which  the  reason  rests  to  bo  erroneous.  Such  transactions  now 
constitute  a  large  part  of  the  use  which  is  made  of  negotiable 
paper.  Even  bank-bills,  where  it  is  desired  to  withiiold  them 
for  a  time  from  circulation,  are  sometimes  pledged  as  security. 
This  is  seldom  a  "  regular,"  or  perhaps  a  proper  transaction  ;  but 
the  objections  to  be  urged  against  it  arc  grounded  upon  the  es- 
pecial nature  and  purpose  of  this  kind  of  negotiable  j)aj)er,  and 
do  not  attach  to  common  bills  or  notes.  It  is  certainly  very 
common  to  offer  notes  for  discount  at  a  bank,  and  otlior  notes  as 
a  security  for  them  ;  and  we  cannot  see  what  objection  can  lie 
against  this  transaction,  or  any  ground  for  saying  that  tlie  f)ank 
should  be  open  to  defences  against  the  notes  tliey  take  as  secu- 
rity, whi(;h  they  ai'c  not  open  to  as  to  those  whicli  they  discount. 
So  far  froui  holding  that  transfer  for  security  is  not  a  regular 


CH.  VI.]      TRANSFERS  FOR  ANTECEDENT  DEBTS,  ETC.         221 

disposition  of  a  negotiable  note,  we  think  it  one  extremely  com- 
mon in  point  of  fact,  wholly  unobjectionable  in  itself,  and  often 
extremely  convenient  to  all  parties.  And  the  law  could  not 
decide  that  this  was  an  improper  use  of  negotiable  paper,  and 
withdraw  its  protection  on  this  ground,  without  impairing  the 
utility  of  this  paper,  and  throwing  a  useless  hinderance  in  tlie 
way  of  mercantile  transactions.  It  is,  therefore,  our  conclusion, 
that  wlien  the  principles  of  the  law  merchant  have  established 
more  firmly  and  unreservedly  tlieir  control  and  their  protection 
over  the  instrnmeuts  of  tlie  merchant,  all  of  these  transfers  (not 
affected  by  peculiar  circumstances)  will  be  held  to  be  regular, 
and  to  rest  upon  a  valid  consideration.  It  is  now  quite  well 
settled,  that  in  the  first  of  the  three  cases  before  stated,  namely, 
wliere  ncgotialile  paper  is  received  in  payment  and  extinguish- 
ment of  a  pre-existing  debt,  the  holder  is  entitled  to  protection. (/;) 

(6)  This  is  held  in  the  following  cases  :  Percival  v.  Frampton,  2  Cromp.  M.  &  R. 
180;  Poirier  v.  Morris,  2  Ellis  &  B.  89  ;  Swift  f.  Tyson,  16  Pet.  1  ;  Riley  v.  Ander- 
son, 2  McLean,  589  ;  Varnum  v.  Bellamy,  4  McLean,  87  ;  Piigh  v.  Durfee,  1  Blatchf. 
C.  C.  412  ;  Homes  v.  Smyth,  16  Maine,  177  ;  Norton  v.  Waite,  20  Maine,  175  ;  Adams 
V.  Smith,  35  Maine,  324  ;  Williams  v.  Little,  11  N.  H.  66;  Atkinson  v.  Brooks,  26 
■\'t.  569;  Chicopce  Bank  v.  Chapin,  8  Met.  40;  Blanchard  v.  Stevens,  3  Cush.  162; 
Brush  v.  Seribner,  11  Conn.  388;  McCasky  v.  Sherman,  24  Conn.  605;  Youngs  v. 
Lee,  18  Barb.  187,  2  Kern.  551  ;  White  v.  Springfield  Bank,  1  Barb.  225,  3  Sandf. 
222  ;  Bank  of  Sandusky  v.  Scoville,  24  Wend.  115  ;  Bank  of  St.  Albans  v.  Gilliland,  23 
Wend.  311  ;  New  York  Marbled  L-on  Works  v.  Smith,  4  Duer,  362 ;  Perdon  v.  Jones, 
2  E.  D.  Smith,  106  ;  and  sec  cases  in  note  d,  infra;  Walker  v.  Geisse,  4  Whart.  252, 
258  ;  Bush  v.  Peekard,  3  Harring.  385  ;  Rcddick  v.  Jones,  6  Ired.  107  ;  Bond  v.  Cen- 
tral Bank,  2  Ga.  92  ;  Bank  of  Mobile  v.  Hall,  6  Ala.  639 ;  Pond  w.  Lockwood,  8  Ala. 
669;  Barney  v.  Earle,  13  Ala.  106;  Carlisle  v.  Wishart,  11  Ohio,  172,  overruling 
Riley  v.  Johnson,  8  Ohio,  526;  Bostwick  v.  Dodge,  1  Doug.  Mich.  413;  Bertrand 
T.  Barkman,  8  Eng.  Ark.  150.  In  Williams  v.  Little,  11  N.  H  66,  Parker,  C.  J.  said : 
"  The  party  who  takes  a  negotiable  note  by  indorsement  bona  fide  before  it  is  payable,  in 
payment  of  a  precedent  debt,  and  discharges  that  debt,  without  notice  of  any  defence  ex- 
isting against  the  note,  has  as  meritorious  a  case  as  he  who  receives  the  note  in  payment 
for  goods  sold  at  the  time.  Townsley  v.  Sumrall,  2  Pet.  170,  182.  If  it  be  said 
that  the  one  parts  with  his  property  upon  the  faith  of  the  promise  contained  in  the  note 
which  is  received  in  payment  for  the  goods,  it  may  be  answered,  that  the  other,  giving 
credit  to  the  note,  parts  with  and  discharges  an  obligation  to  pay  money,  which  is,  in 
contemplation  of  law,  property  of  quite  as  high  a  character.  He  cannot,  after  such 
payment  and  discharge,  maintain  an  action  upon  the  debt  he  has  thus  discharged, 
merely  because  the  maker  of  the  note  he  received  in  payment  might  have  had  some 
defence  against  it  in  the  hands  of  the  payee  from  whom  he  received  it.  There  is  a  suf- 
ficient consideration.  He  has  parted  with  a  right.  Something  more  is  necessary  to 
enable  him  to  recover  his  debt  which  ho  has  surrendered.  He  may  be  restored  to  his 
right  to  recover  the  amount  of  his  debt,  if  the  maker  avoids  the  note  in  liis  hands  by 
a  defence  which  arose  prior  to  the  indorsement.  But  the  holder,  having  thus  parted 
19* 


ooo 


NOTES   AND  BILLS.  [CH.  VL 


In  New  York  it  was  at  one  time  held  that  the  receiving  of  a 
note  in  payment  merely  of  an  existing  debt  was  not  enough, 
without  giving  up  other  security,  (c)  But  the  rule  now  seems 
to  be  otherwise. (^) 

It  may  be  remarked,  that  when  negotiable  paper  is  received  in 
payment  of  a  debt,  it  may  be  received  as  absolute  payment,  and 
in  extinguishment  of  the  debt,  or  it  may  be  received  as  condi- 
tional payment,  namely,  as  payment,  provided  it  shall  turn  out 
productive,  upon  the  use  of  due  diligence.     In  two  or  three  of 


with  Tiis  property,  on  the  faith  of  a  promise  which  the  maker  had  made  negotiable,  and 
which  bore  no  marks  of  dishonor,  the  question  recurs  why  he  has  not  as  good  and 
meritorious  a  title  as  he  who  had  parted  with  merchandise,  or  incurred  responsibilities 
upon  a  similar  consideration.  If  the  holder  may,  upon  a  failure  to  recover  the  note  in 
the  one  case,  be  remitted  to  his  original  right,  and  recover  his  debt  against  the  indorser, 
he  may  in  the  other  recover  back  his  merchandise,  or  its  value,  or  the  money  he  has 
paid.  Nor  are  we  aware  of  any  policy  which  should  lead  to  such  a  distinction.  The 
payment  of  a  debt  is,  or  ought  to  be,  as  much  a  commercial  transaction  as  a  sale  of 
goods,  or  a  loan  of  money.  If  it  is  in  the  usual  course  of  trade  to  purcliase,  it  ought 
also  to  be  in  the  usual  course  of  trade  and  commercial  dealing  to  pay." 

(c)  See  Francia  v.  Joseph,  3  Edw.  Ch.  182;  Spear  v.  Myers,  6  Barl).  44.5;  Gold- 
smid  V.  Lewis  Co.  Bank,  12  Barb.  407  ;  Rosa  v.  Brothcrson,  10  Wend.  8.5,  commented 
on  and  explained  in  Smith  v.  Van  Loan,  16  AVcnd.  6.59.  So  held  in  Tennessee.  Vat- 
terlien  v.  Howell,  5  Sneed,  441  ;  Nichol  v.  Bate,  10  Ycrg.  429.  In  the  following  cases, 
other  security  being  given  up,  the  holder  was  held  entitled  to  recover.  Smith  v.  Van 
Loan,  16  Wend.  659;  Bank  of  Salina  v.  Babcock,  21  Wend.  499;  Mohawk  Bank  v. 
Core}-,  1  Hill,  511. 

{(J)  See  cases  cited  supra,  note  b.  In  Youngs  v.  Lee,  18  Barb.  187,  192,  the  court 
said  :  "  The  mere  discharge  of  an  antecedent  debt  is  a  valuable  consideration."  In  the 
Court  of  Appeals,  2  Kern.  551,  the  case  was  put  on  this  ground  :  "  In  the  case  before 
as,  the  note  was  received  in  extinguishment  of  a  demand  upon  a  note  not  yet  due,  and 
the  note  was  delivered  up.  The  surrender,  upon  a  consideration  of  a  security  not  due, 
extinguishes  the  security."  In  Stetthcimcr  v.  Meyer,  .3.3  Barb.  215,  it  was  held  that  it 
made  no  difference  that  the  debt  was  overdue,  if  the  evidence  of  the  indebtedness,  or  a 
security  therefor,  was  at  the  time  of  taking  the  note  given  up.  In  Farrington  v.  Frank- 
fort Bank,  24  Barb.  554,  a  person  was  induced,  by  false  and  fraudulent  rci)rcsentatious 
of  the  drawer  of  bills  of  exchange,  to  indorse  the  same  for  his  accommodation,  and  the 
bills  were  therefore  delivered  to  the  casliier  of  a  l)ank  which  then  held  protested  drafta 
drawn  by  the  same  drawer  on  the  same  drawees  There  was  no  agreement  between  the 
drawer  and  the  cashier  that  the  now  drafts  should  be  received  in  payment  of  the  pro- 
tested drafts,  l)ut  they  were  procurcil,  and  delivered  to  the  cashier  with  the  intention 
that  they  should  be  held  as  additional  and  collateral  security  to  the  jirotested  bills. 
The  new  drafts  were  subsequently  passed  to  tlie  credit  of  tlie  drawer  on  the  books  of 
the  bank,  and  he  was  charged  with  the  protested  bills,  and  the  latter  were  stamped  with 
the  cancelling-iron  of  the  bank,  but  still  remained  in  its  possession.  It  was  held  that 
the  bank  was  not  a  bona  fuk  holder.  See  also  Payne  v.  Cutler,  13  Wend.  605  ;  Clark 
r.  Ely,  2  Sandf  Ch.  166  ;  Fulton  Bank  v.  Phoenix  Bank,  1  Hall,  562  ;  Stewart  v.  Small, 
8  Barb.  559. 


CH.  VI.]      TRANSFERS  FOR  ANTECEDENT  DEBTS,  ETC.         223 

our  States,  as  Massachusetts  and  Maine,  the  presumption  is,  that 
it  is  taken  as  absolute  payment ;  but  in  EngUmd  and  in  most  of 
our  States  the  presumption  is,  that  it  is  taken  as  conditional 
payment.  To  what  extent  any  of  our  courts  would  make  a 
distinction  between  these  two  cases,  holding  that  one  who  takes 
a  note  as  absolute  payment  is  a  holder  for  value,  and  that  one 
who  takes  it  as  conditional  payment  is  not,  is  left  in  great  doubt 
and  obscurity  by  the  cases.  As  to  the  second  case  stated  in  the 
text,  namely,  where  negotiable  paper  is  received  as  collateral 
security,  of  an  antecedent  debt,  the  authorities  are  much  less 
harmonious.  In  England,  it  appears  to  be  settled  that  such  a 
holder  is  entitled  to  protection,  (e)  It  has  been  so  held,  also,  by 
the  Supreme  Court  of  the  United  States. (/)  The  same  doctrine, 
it  seems,  is  held  in  Massachusetts  and  in  some  other  States.  (^) 
In  Vermont  it  has  been  held,  that  one  to  whom  a  bill  of  exchange 
is  indorsed  as  collateral  security  for  an  antecedent  debt,  is  en- 
titled to  recover  against  an  accommodation  acceptor,  not  known 
to  him  to  be  such  when  the  bill  was  taken  by  him.(/!)     In  other 


(e)  Percival  v.  Frampton,  2  Cromp.  M.  &  R.  180  ;  Poirier  v.  Morris,  2  Ellis  &  B.  89. 
See  on  this  subject  the  chapter  ou  Payment  by  Bill  or  Note. 

(f)  McCarty  v.  Roots,  21  How.  432.  See  dicta  in  Swift  v.  Tyson,  16  Pet.  1.  In 
Goodman  v.  Simonds,  20  How.  343,  at  the  time  the  note  in  suit  was  taken,  collateral 
securities  previously  given  were  surrendered,  and  further  time  given.  It  was  held,  that, 
whatever  the  decision  of  the  court  might  be  on  the  general  question,  these  facts  con- 
stituted the  assignee  a  holder  for  value. 

(g)  Chieopee  Bank  v.  Chapin,  8  Met.  40  ;  Blanchard  v.  Stevens,  3  Gush.  162;  Gard- 
ner i'.  Gager,  1  Allen,  502;  Lc  Breton  v.  Pierce,  2  Allen,  14  ;  Gibson  v.  Conner,  3 
Ga.  47  ;  Savings  Bank  v.  Bates,  8  Conn.  50.5 ;  Bank  of  the  Republic  v.  Carrington,  5 
R.  I.  515;  Bank  of  Charleston  v.  Chambers,  11  Rich.  657;  Smith  v.  Iliscocks,  14 
Maine,  449 ;  Valette  v.  Mason,  1  Smith,  Ind.  89,  1  Cart.  288 ;  and  dicta  in  Payne  2». 
Bensley,  8  Calif.  260 ;  Allaire  v.  Hartshorne,  1  N.  J.  665.  The  security  must,  how- 
ever, be  given  for  a  debt  which  can  be  identified.  Merriam  v.  Granite  Bank,  8 
Gray,  254. 

(h)  Atkinson  v.  Brooks,  26  Vt.  569.  Redjield,  C.  J.  stated  the  following  exceptions 
as  based  upon  good  sense,  and  perhaps  sustained  by  authority  :  —  "1.  A  note  or  bill 
negotiated  in  security  for  a  debt  not  yet  due,  is  not  upon  sufficient  consideration,  ordi- 
narily, unless  the  creditor  wait  in  faith  of  the  collateral  after  his  debt  becomes  due. 
2.  If  the  debtor  is  notoriously  insolvent  before  the  note  or  bill  is  negotiated  as  collateral 
security,  it  is  said  the  creditor  can  only  stand  upon  the  rights  of  his  debtor.  3.  If  a 
note  or  bill  is  taken  merely  to  collect  for  the  debtor,  to  apply  when  collected,  the 
creditor  not  becoming  a  party  by  indorsement,  so  as  to  be  bound  to  pursue  the  rules  of 
the  law  merchant  in  making  demand  of  payment  and  giving  notice  back,  the  holder  i3 
merely  the  agent  of  the  owner.  Do  La  Chaumctte  v.  Bank  of  England,  9  B.  &  C.  208 ; 
Allen  V.  King,  4  McLean,  128.  4.  So,  too,  probably,  if  it  were  shown  positively  that 
the  holder  gave  no  credit  to  the  indorsed  bill,  and  did  in  no  sense  conduct  differently 


224  NOTES   AND    BILLS.  [CH.  VL 

States  it  is  held  tliat  the  taking  of  a  note  as  collateral  security 
for  a  pre-existing  debt,  without  more,  will  not  place  the  taker  in 
the  fcituatiou  of  a  holder  for  value,  so  as  to  protect  him  against 
the  equities  subsisting  between  the  original  parties  to  tlie  note  ; 
but  it  is  otherwise  if  there  is  a  new  and  distinct  considera- 
tion, as  if  time  was  given,  in  consideration  of  obtaining  the 
note  as  security  for  the  debt.  For  the  giving  of  time  would 
be  a  present  and  a  valuable  consideration,  and  a  pledge  on  these 
terms  would  be  the  same  as  a  pledge  for  money  paid  down.(i) 
In  the  third  case  stated,  namely,  where  one  receives  a  bill  or 
note  as  collateral  security  for  a  debt  contracted  at  tlie  time, 
it  is  quite  well  settled  that  he  is  entitled  to  protection  against 
equities.  (7) 


on  tliat  account,  he  could  not  be  regarded  as  a  holder  for  value."  This  case  is  doubted 
in  Austin  v.  Curtis,  31  Vt.  64. 

(i)  Petrie  v.  Clark,  11  S.  &  R.  377  ;  Kirkpatrick  v.  Muirliead,  16  Penn.  State,  117  ; 
Clark  V.  Ely,  2  Sandf.  Ch.  166  ;  Bank  of  Pouglikeepsie  v.  Hasbrouck,  2  Seld.  216, 
230:  Prentiss  v.  Graves,  33  Barb.  621  ;  Ontario  Bank  v.  Worthington,  12  Wend.  593; 
Warden  v.  Howell.  9  Wend.  170;  Stalker  v.  M' Donald,  6  Hill,  93  ;  Bertrand  y.  Bark- 
man,  8  Eng.  Ark.  150;  Jcnncss  v.  Bean,  10  N.  H.  266 ;  Prentice  v.  Zane,  2  Grat.  262 ; 
CuUum  V.  Branch  Bank,  4  Ala.  21  ;  Roxborough  v.  Messick,  6  Ohio  State,  448 ;  Cook 
V.  Helms,  5  Wise.  107  ;  Goodman  v.  Sinionds,  19  Misso.  106.  In  Fenouille  v.  Hamilton, 
35  Ala.  319,  it  was  also  held,  that  the  fact  that  the  holder  afterwards  grants  indulgcnoo 
or  forbears  to  enforce  his  remedies  for  the  collection  of  his  debt,  when  it  is  not  showu 
that  such  indulgence  or  forbearance  was  an  clement  of  the  contract  by  which  he  acquired 
the  paper,  does  not  render  him  a  holder  for  value.  In  tlie  following  cases  the  giving 
up  other  security  was  held  sufficient  to  enable  the  holder  to  recover.  Goodman  v. 
Simonds,  20  How.  343;  Fenby  v.  Pritchard,  2  Sandf.  151  ;  Payne  v.  Benslcy,  8  Calif. 
260 ;  Allaire  v.  Hartshorne,  1  N.  J.  665  ;  liobbins  v.  Richardson,  2  Bosw.  248  ;  Dc- 
peau  V.  Waddington,  6  Whart.  220.  If  a  person  takes  a  note  as  collateral,  and  not 
only  docs  not  give  any  other  consideration,  but  retains  other  security  which  he  before 
held  for  the  debt,  it  has  been  held  that  he  is  not  a  bona  fide  holder  for  value.  Micklcs 
V.  Colvin,  4  Bar!).  304. 

( /)  Thus,  in  Collins  v.  Martin,  1  B.  &  P.  648,  where  A  deposited  bills  indorsed  in 
blank  with  B,  bis  banker,  to  be  received  when  due,  and  the  latter  raised  money  upon 
them  by  pledging  them  with  C,  another  banker,  and  afterwards  became  bankrupt  ;  it 
was  held,  that  A  could  not  maintain  trover  against  C  for  the  bills.  So  in  Munn  v. 
M'Donald,  10  Watts,  270,  it  was  held,  that  if  the  payee  of  a  promissory  note,  indorsed 
by  himself  and  subsequent  indorsers,  delivers  it  to  his  creditor  as  collateral  security  for 
a  debt  then  created  on  the  faith  of  such  indorsements,  without  notice  of  any  equity 
between  the  maker  and  payee,  such  maker  cannot  defend  himself  by  showing  failure 
of  consideration  as  between  him  and  the  payee.  And  see,  to  the  same  effect,  Watson 
V.  Cabot  Bank,  5  Sandf.  423  ;  Williams  i;.  Smith,  2  Hill,  301  ;  Griswold  v.  Davis,  31 
Vt.  390  ;  Ferdon  v.  Jones,  2  E.  D.  Smith,  106.  So  if  it  be  taken  for  advances  to 
be  made.  Bancroft  v.  McKnight,  11  Rich.  663.  In  Fenby  v.  Pritchard,  2  Sandf. 
151,  it  was  held,  that  on  a  sale  on  credit,  to  be  secured  by  notes  as  collateral,  not 


CH.  VI.]  TRANSFERS    FOR    ANTF.CKDENT    DKBTS,   ETC.  226 

To  the  general  rules  which  we  have  just  stated,  there  are 
undoubtedly  exceptions,  and  among  them  are  such  cases  as  on 
their  own  facts  and  merits  come  under  the  influence  of  a  differ- 
ent principle.  The  inquiry  in  every  case  is  whether  the  partic- 
ular transaction  is  within  what  is  {)ropcrly  meant  by  the  negotia- 
tion of  negotial)le  paper. (/i,-) 

If  a  note  bo  indorsed  and  delivered  for  the  purpose  of  collec- 
tion, with  directions  to  apply  the  proceeds,  when  collected,  in 
payment  of  a  debt  due  to  the  indorsee  from  the  indorscr,  it  seems 
that  the  indorsee  will  be  suljject  to  the  same  defences  as  his  in- 


yet  due,  the  receipt  of  the  collaterals  five  days  after  the  delivery  of  the  goods  makes 
the  seller  a  bona  Jidt  iiolder  of  the  notes  for  a  valuable  consideration,  so  as  to  protect 
iiim  against  any  defence  which  the  maker  of  the  notes  iiad  against  the  buyer  of  the 
goods.  The  only  cases  opposed  to  this  view  are  Jenness  v.  Bean,  10  N.  H.  266,  and 
Williams  v.  Little,  11  N.  H.  66,  in  which  it  is  held,  that,  where  a  note  is  indorsed  as 
collateral  security,  the  general  property  remaining  in  the  indorscr,  the  indorsee  takes  it 
like  a  chose  in  action  not  negotialilc,  subject  to  all  defences  to  which  it  would  be 
subject  in  the  hands  of  the  indorscr  at  the  time  when  notice  is  given  of  the  indorse- 
ment ;  and  it  mak'  s  no  difference  whether  it  is  indorsed  as  security  for  an  existing 
debt,  or  value  receiveil  at  the  time.  But  in  the  later  case  of  Clement  v.  Leverett,  12 
N.  H.  317,  where  a  principal  accepted  bills  of  exchange,  drawn  on  him  by  his  agent, 
payable  to  the  order  -jf  the  agent,  who  agreed  to  get  them  discounted  for  the  benefit 
of  the  principal ;  and  the  agent,  assuming  to  be  the  owner  of  the  bills,  pledged  them 
to  a  bona  fide  holder,  to  secure  money  borrowed  for  his  own  use,  it  was  held,  that  the 
principal,  liaving  enabled  the  agent  to  hold  himself  out  as  owner,  was  bound  by  the 
pledge.  We  are  not  able  to  see  very  clearly  how  this  case  can  be  reconciled  with  the 
two  former. 

(k)  See  Bay  v.  C'oddington,  5  Johns.  Ch.  54,  20  Johns.  637.  In  this  case,  one  R. 
having,  as  agent  of  B.,  received  negotiable  notes  to  be  remitted  to  B.,  delivered  them  to 
C.  as  security  against  responsibilities  as  indorscr  of  certain  accommodation  notes  of  R., 
who  had  then  stopped  payment  and  become  insolvent,  but  on  which  notes  of  R  ,  C.  had 
not  then  become  chargeable  //e/J,  that  though  C.  had  no  knowledge  that  the  notes  so 
deposited  with  him  belonged  to  B.,  but  believed  R.  to  be  the  true  owner  of  them,  yet 
he  was  not  entitled  to  hold  tiiem,  as  against  B.,  the  lawful  owner,  but  was  accountable 
to  him  for  the  amount,  with  interest.  Kent,  C.  said  :  "  The  notes  were  not  negotiated 
to  them  in  the  usual  course  of  business  or  trade,  nor  in  payment  of  any  antecedent 
and  existing  debt,  nor  for  cash  or  property  advanced,  debt  created,  or  responsibility 
incurred,  on  the  strength  and  credit  of  the  notes.  They  were  received  from  R.  &  S., 
and  after  they  had  stopped  payment  and  had  become  insolvent  within  the  knowledge 
of  J.  &  C.  C,  and  were  seized  upon  by  the  Coddingtons,  as  tabula  in  naufragio,  to 
secure  themselves  against  contingent  engagements  previously  made  for  R.  &  S.,  and 
on  which  they  had  not  then  become  chargeable.  There  is  no  case  that  entitles  such  a 
aolder  to  the  paper,  in  opposition  to  the  title  of  the  true  owner.  They  were  not  hold- 
ers for  a  valuable  consideration,  within  the  meaning  or  within  the  policy  of  the  law.^' 
We  are  not  aware  that  this  decision  has  ever  been  questioned.  And  see,  to  the  same 
effect,  Bank  of  Mobile  v.  Hall,  6  Ala.  639 ;  Andrews  v.  McCoy,  8  Ala.  920 ;  Ber- 
trand  v.  Barkman,  8  Eng.  Ark.  150. 

Vol.  I.-P 


226  NOTES   AND   BILLS.  [CH.  VI. 

dorser  For  until  the  note  is  collected,  he  holds  it  merely  as 
agent  or  trustee  of  his  indorser.(/) 

It  is  universally  conceded  that  the  holder  of  an  accommoda- 
tion note,  without  restriction  as  to  the  mode  of  using  it,  may 
transfer  it,  either  in  payment,  or  as  collateral  security  for  an  an- 
tecedent debt,  and  the  maker  will  have  no  defence. (7?i) 

In  this  chapter  we  have  treated  specifically  only  of  negotiable 
paper.  But  what  has  been  said  applies  equally  to  a  promissory 
note  not  payable  to  order  or  bearer,  and  therefore  not  negotiable, 
with  only  those  qualifications  and  exceptions  which  are  made 
necessary  by  the  fact,  that  a  non-negotiable  note  cannot  be  in- 
dorsed, and  therefore  no  person  can  acquire  the  rights  of  an 
indorsee. 

Whether  the  presumption  of  consideration  extends  to  a  note 
or  bill  which  is  not  negotiable,  cannot  be  positively  stated  from 
the  authorities.  If  the  words  "  value  received,"  or  any  similar 
or  equivalent  words,  are  used,  they  would  undoubtedly  be  re- 
garded as  evidence  of  consideration.  But  it  is  a  different  ques- 
tion, whether,  if  no  such  words  are  used  in  a  bill  or  note  which 
is  not  payable  to  order  or  to  bearer,  a  presumption  of  considera- 


(l)  Solomons  i-.  Bank  of  England,  13  East,  135  ;  De  La  Cliaumcttc  i'.  Bank  of  Eng- 
land, 9  B.  &  C.  208  ;  Johnson  v.  Barney,  1  Iowa,  531  ;  Atkinson  v.  Brooks,  26  Vt. 
584,  cited  supra.     See  Allen  v.  King,  4  McLean,  128. 

(;n)  Rutland  Bank  v.  Buck,  5  Wend.  66;  Grandin  v.  Le  Roy,  2  Paige,  509;  La- 
throp  V.  Morris,  5  Sandf.  7;  Mohawk  Bank  v  Corey,  1  Hill,  513;  IMatthcws  v.  Ru- 
therford, 7  La.  Ann.  225;  Ai)i)leton  v.  Donaldson,  3  Pcnn.  State,  386;  Boyd  r. 
Cuinmings,  17  N.  Y.  101  ;  De  Zeng  v.  Fyfc,  1  Bosw.  335;  Rohhins  i'.  Richardson, 
2  Bosw.  248.  In  Kinibro  v.  Lytic,  10  Yerg.  417,  A  left  blank  indorsements  witli  B, 
with  a  view  to  aid  B  in  his  business  and  to  sustain  his  credit.  No  restriction  was 
imposed  as  to  the  use  to  be  made  of  them.  B  filled  up  a  note  with  A's  indorsement 
thereon,  and  passed  it  to  C  as  security  for  an  existing  liability  of  B.  Held,  that  A 
was  liable  to  C  upon  such  indorsement.  Where  an  indorsement  in  blank  is  left  with 
A  generally,  and  without  restriction,  it  is  an  assent  on  the  part  of  tlie  indorser,  that 
A  may  pledge  it  as  security  for  his  existing  liabilities,  or  use  it  in  any  other  way  law- 
ful and  necessary  for  his  accommodation  and  credit.  In  Lord  v.  The  Ocean  Bank,  20 
Penn.  State,  384,  Black,  C.  J.  said:  "  The  maker  of  an  accommodation  note  cannot 
set  up  the  want  of  consideration  ns  a  defence  against  it  in  the  hands  of  a  third  per.son, 
though  it  be  there  as  collateral  security  merely.  He  who  chooses  to  put  himself  in  the 
front  of  a  negotiable  instrument  for  the  benefit  of  his  friend,  must  abide  the  conse- 
quence (12  8.  &  R.  382),  and  has  no  more  right  to  complain,  if  his  friend  accommo- 
dates himself  by  pledging  it  for  an  old  debt,  than  if  ho  had  used  it  in  any  other  way. 
This  was  decided,  3  Barr.  381,  in  a  case  strongly  resembling  the  present  one.  Ac- 
commodation paper  is  a  loan  of  the  maker's  credit,  without  restriction  as  to  tho  man- 
ner of  its  use." 


CH.  VI.]      TRANSFERS  FOR  ANTECEDENT  DEBTS,  ETC.         227 

tion  would  exist.  The  only  conclusion  to  which  we  are  led  by 
the  authorities  is,  that  in  some  of  our  States  this  presumption 
would  be  denied,  and  in  other^^,  perhaps,  admitted. (yi) 

It  is,  liowever,  certain  that  any  holder  of  a  non-negotiable  note, 
however  numerous  may  be  the  transferrers  intermediate  between 
himself  and  the  promisee,  stands  only  in  the  place  of  the  prom- 
isee, and  has  only  his  rights.     Therefore,  the  presumption  of  a 


(n)  The  text-books  and  the  cases  say  comparatively  little  about  promissory  notes 
not  nej^otiable  Selwyn's  Nisi  Prius,  vol.  1,  p.  400,  defines  a  promissory  note  as  a 
promise  in  writing  to  pay  "  A  or  order,  or  A  or  bearer."  The  3  and  4  Anne,  ch.  9, 
speaks  only  of  notes  in  writing,  whereby  the  promisor  promises  "  to  pay  unto  any 
other  person  or  his  order."  This  statute  was  passed  in  1704.  Twenty-four  years  after, 
the  precise  question  came  before  the  Common  Bench,  on  demurrer,  whether  a  note, 
omitting  the  words  "  to  order,"  was  a  promissory  note  within  the  statute ;  and  the 
court  held  it  to  be  "clearly  within  the  statute."  Burchell  v.  Slocock,  2  Ld.  Raym. 
1545.  In  Smith  v.  Kendall,  6  T.  K.  123,  the  question  of  allowing  three  days'  grace  on 
such  a  note  came  before  the  King's  Bench,  and  the  counsel  for  the  plaintiff  cited  many 
authorities  to  the  point  that  this  was  a  promissory  note  within  the  statute.  But  Lord 
Kenyon,  in  giving  his  decision,  refers  only  to  Burchell  v.  Slocock,  but  fully  confirms 
that  case.  Story,  in  his  work  on  Promissory  Notes,  sect.  9,  says  :  "  But  if  the  prom- 
ise be  in  writing,  and  it  has  all  the  other  requisites,  it  is  not  essential  to  its  character 
as  a  promissory  note  that  it  should  be  negotiable."  And  in  section  3  he  says  :  "  A 
promissory  note  is,  in  contemplation  of  law,  entitled  to  all  the  privileges  belonging  to 
such  an  instrument  by  the  Commercial  Law  as  well  as  by  Common  Law,  without 
being  negotiable."  In  sections  7  and  181  lie  states  that  "promissory  notes"  import  a 
consideration  ;  but  in  section  7  he  enumerates  this  presumption  as  one  of  the  "  privileges, 
benefits,  and  advantages  "  given  to  them  "  to  insure  their  circulation  as  a  medium  of 
pecuniary  commercial  transactions."  But  this  reason  certainly  does  not  apply  to  notes 
not  negotiable,  because  they  cannot  circulate  by  indorsement.  In  Mandeville  v.  Welch, 
5  Wheat.  282,  Story,  J.,  giving  the  opinion  of  the  court,  says  :  "  In  this  respect,  bills 
of  exchange  and  negotiable  notes  are  distinguished  from  all  other  parol  contracts  by 
authorities  which  are  not  now  to  be  questioned."  He  referred  to  the  presumption  of 
consideration  ;  but  as  it  was  presented  by  the  case  as  a  question  between  third  parties, 
this  may  explain  his  use  of  the  word  negotiable.  Generally,  when  the  rule  is  stated, 
either  in  te.xt-books  or  in  adjudged  cases,  it  is  said  of  bills  of  exchange  and  promissory 
notes,  without  using  the  word  negotiable  ;  and  when  this  word  is  used,  it  seems  to  be 
a  case  where  only  a  negotiable  note  was  under  discussion.  In  Meredith  v.  Chute,  2 
Ld.  Raym.  760,  {noni.  Meredith  v.  Short,  I  Salk.  25,)  Lord  Holt  applies  the  rule  to 
a  note,  of  which  it  is  not  stated  expressly  whether  it  was  negotiable  or  not ;  bat  as 
the  note  is  said  in  both  reports  to  have  been  "  delivered  "  to  the  defendant  as  the 
ground  of  his  assumpsit,  it  may  perhaps  be  inferred,  both  from  this  word  and  from 
other  parts  of  the  case,  that  the  note  was  not  indorsed  or  negotiable.  In  Ridout  v. 
Bristow,  1  Cromp.  &  J.  231,  the  action  was  on  a  promissory  note  "expressed  to  be 
payable  to  the  testator  twelve  months  after  date,"  and  turned  upon  the  consideration. 
There  is  no  intimation  throughout  the  case,  which  is  a  long  one,  that  the  note  "was  ne- 
gotiable, unless  it  be  implied  in  the  remark  of  Vanghan,  B.,  that  the  note  was  in  the 
usual  form,  and  like  all  other  notes."  But  he  says  this  in  reference  to  an  attempt  by 
defendant  to  make  it  a  "  mere  indemnity  note."    Through  the  case,  all  the  counsel  and 


228  NOTES   AND   BILLS.  [CH.  VI. 

consideration,  or  the  evidence  of  a  consideration  derived  from 
such  words  as  "  value  received,"  is  open  to  rebutter,  and  want 
or  failure  of  consideration,  total  or  partial,  may  be  proved  by 
the  promisor  against  any  holder  of  a  note  which  is  not  nego- 
tiable, to  the  same  extent  and  in  the  same  way  in  which  it  may 
be  proved  between  immediate  parties  if  the  paper  be  negotiable. 


all  the  judges  speak  of  the  rule  as  familiar  and  certain,  using  no  words  which  would 
confine  it  to  negotiable  notes. 

That  this  presumption  of  consideration  attaches  to  promissory  notes  which  are  not 
negotiable,  seems  to  have  been  distinctly  held  in  New  York.  In  Kimball  v.  Hunting- 
ton, 10  Wend.  675,  the  Supreme  Court  say  of  an  instrument  in  these  words,  "Due 
A.  B.  $325,  payable  on  demand  ":  "  The  instrument  is  a  promissory  note  within  the 
statute,  as  it  contains  every  quality  essential  to  such  paper."  And  in  Goshen  & 
Minisink  Turnpike  Road  v.  Hurtin,  9  Johns.  217,  which  was  assumpsit  on  a  written 
promise  to  pay  money,  the  court  say  :  "  The  note  set  forth  in  the  declaration  is  a  good 
promissory  note  within  the  statute,  though  it  has  not  the  words  'bearer,^  or  ^ order'" ; 
and  afterwards,  "  It  was  not  requisite  that  a  consideration  should  be  averred,  or  appear 
upon  the  face  of  the  note,  for  every  note  within  the  statute,  unless  there  be  something 
in  the  note  itself  to  the  contrary,  imports  a  consideration  ;  and  that  presumption  stands 
good  until  the  defendant  destroy  it."  A  similar  conclusion  may  perhaps  be  inferred 
from  Coursin  v.  Ledlic,  31  Penn.  State,  506,  in  which  negotiability  is  held  not  to  be 
essential  to  a  bill  of  exchange.  See  also,  Mitchell  v.  Rome  Railroad  Co.,  17  Ga.  574  ; 
Thompson  v.  Crutcher,  26  Misso.  319  ;  Middlesex  Husbandmen,  &c.  v.  Davis,  3  Met. 
133;  Townsend  v.  Derby,  id.  363;  Downing  v.  Backenstoes,  3  Caines,  137;  Jones 
V.  Jones,  6  M.  &  W.  84. 

In  Bristol  v.  Warner,  19  Conn.  7,  it  is  distinctly  decided  that  "  in  this  State  "  a  note 
not  negotiable,  and  not  purporting  to  be  for  value  received,  does  not  imply  a  consider- 
ation. The  only  authority  cited  is  Edgerton  v.  Edgerton,  8  Conn.  6.  In  that  case,  the 
court  so  rule,  citing  no  authorities,  however,  and  quoting  from  Swift's  Evidence  thi.s 
passage:  "In  Connecticut,  promissory  notes  from  the  earliest  periods  have  been  con- 
sidered as  specialties,  so  far  as  to  import  a  consideration."  The  court,  after  expressing 
the  highest  regard  for  Judge  Swift's  authority,  overrule  it  on  this  point.  The  court 
evidently  construe  Swift's  words  as  including  non-negotiable  notes  ;  but  the  rule,  pre- 
cisely as  he  gives  it,  is  given  in  very  many  cases.  Kent  says,  "The  words  '  value  re- 
ceived' in  a  bill  or  note  are  unnecessary',  because  value  is  implied  in  every  negotiable 
bill,  note,  iicceptance,  or  indorsement,"  (3  Kent,  Com.  77,)  thus  omitting  the  word 
"  negotiable  "  when  he  gives  the  rule,  but  using  it  when  he  gives  the  reason  for  the  rule. 
In  Bircleback  v.  Wilkins,  22  Penn.  State,  26,  it  is  said  that  "mere  possession  of  non- 
nogotiablc  paper  implies  no  consideration,  and  confers  no  right  of  action  ia  the  holder's 
name."     Sec  also  Barrick  v.  Austin,  21  Barb.  241. 

As  we  have  already  said  in  the  text,  wo  are  unable  to  make  a  more  accurate  state- 
ment of  the  law  on  this  subject  than  that  "  value  received  "  in  non-negotiable  paper 
raises  the  presumption  of  consideration  ;  but  where  neither  these  words  nor  others  of 
equivalent  import  arc  used,  and  the  instrument  contains  neither  "  bearer  "  nor  "  order," 
in  some  States  the  presumption  of  consideration  would  probably  be  udraiUcd,  and  iu 
others  denied. 


CH.  VII.]  WHERE   A   PARTY   SIGNS   AS   PRINCIPAL.  22? 


CHAPTER    VII. 

OF    THE    RIGHTS    AJST)    DUTIES    OF    THE    MAKER. 


SECTION   I. 

WHERE  A  PARTY   SIGNS   AS   PRINCIPAL. 

We  have  already  seen  that  the  maker  of  a  note  and  the  ac- 
ceptor of  a  bill  have  nearly  the  same  rights  and  duties. (o)  Botli 
are  the  principal  debtors,  to  be  called  on  before  any  other  parties 
can  be  made  liable. (j»)  There  are,  however,  some  differences, 
which  may  be  gathered  from  what  is  elsewhere  said,  but  may  be 
here  briefly  stated.  While  the  promise  in  a  negotiable  note  must 
be  absolute, (g)  an  acceptance  may  be  conditional. (r)     Possession 


(o)   Supra,  p.  54. 

(p)  Blair  v.  Bank  of  Tennessee,  11  Humph.  84;  Foden  v.  Sharp,  4  Johns.  183; 
Wolcott  V.  Van  Santvoord,  17  Johns.  248  ;  Wallace  v.  M' Connell,  13  Pot.  136  ;  At- 
tenborough  v.  MacKenzle,  Exch.  1856,  36  Eng.  L.  &  Eq.  562.  In  Laxton  v.  Peat,  2 
Camp.  185,  Lord  Ellenhcn-ough  held,  that  an  acceptor  for  the  accommodation  of  the 
drawer  was  only  a  surety  for  the  drawer.  See  also  Collott  v.  Haigh,  3  Camp.  281. 
But  the  authority  of  these  cases  was  denied  in  Fentum  v.  Pocock,  5  Taunt.  192, 
1  Mar.sh.  14  ;  and  in  Yallop  v.  Ebers,  1  B.  &  Ad.  698.  See  also  Price  v.  Edmunds,  10 
B.  &  C  578.  Harrison  v.  Courtauld,  3  B.  &  Ad.  36  ;  Nichols  v.  Norris,  id.  41  ;  Strong 
I'.  Foster,  17  C.  B.  201  ;  Lord  v.  Ocean  Bank,  20  Pcnn.  State,  384  ;  Church  v.  Bar- 
low, 9  Pick.  547  ,  Commercial  Bank  v.  Cunningham,  24  Pick.  270  ;  Pickering  v. 
Marsh,  7  N.  H.  192 ;  Murray  v.  Judah,  6  Cowen,  484  ;  Clopper  v.  Union  Bank,  7 
Harris  &  J.  92  ;  Lambert  v.  Sandford,  2  Blackf.  137  ;  Anderson  v.  Anderson,  4  Dana^ 
352  ;  Farmers'  &  M.  Bank  v.  Rathbone,  26  Vt.  19 ;  Yates  v.  Donaldson,  5  Md.  389; 
Hansbrough  v.  Gray,  3  Grat.  356.  But  see  Parks  v.  Ingram,  2  Foster,  283.  Courts 
of  equity  have  been  disposed  to  admit  evidence  of  the  actual  relations  of  the  parties, 
when  those  relations  were  known  to  the  holder.  Pooley  v.  Harradine,  7  Ellis  &  B.  431, 
40  E.  L.  &  E.  96.  See  Bank  of  Ireland  i".  Beresford,  6  Dow,  233.  Ex  parte  Glendin- 
ning.  Buck,  517;  Adle  v.  Metoyer,  1  La.  Ann.  254;  Theobald  on  Principal  and 
Surety,  254.  The  relations  of  the  parties  to  each  other  may  be  shown  by  evidence. 
See  Parks  v.  Ingram,  2  Foster,  283 ;  In  re  Babcock,  3  Story,  393 ;  Baker  v.  Martin, 
3  Barb.  634  ;  Jones  v.  Brooke,  4  Taunt.  464. 

{q)   Supra,  c.  3,  ^  5. 

(r)   Infra,  c.  9,  §1- 

VOL.   I.  20 


230  NOTES   AND   BILLS.  [CH.  VH. 

of  a  note  by  the  maker  affords  a  presumption  in  favor  of  his  pay- 
ment of  it :  while  mere  possession  by  the  acceptor  raises  no  such 
presumption. (5)  The  maker  of  a  note  does  not  by  payment 
affirm  the  genuineness  of  the  signature  of  the  payee,  while  the 
acceptor  by  his  acceptance  admits  that  the  signature  of  the 
drawer  is  genuine. (<)  It  is  the  duty  of  both  to  pay  to  any  legal 
holder,  on  legal  demand,  the  whole  amount  of  the  note  or  bill, 
which  is  then  due.(M)  But  they  have  not  the  right  of  paying 
before  the  paper  is  mature,  unless  by  the  consent  of  the  holder. 
If  they  tender  the  money  before  maturity,  and  it  is  received,  this 
acceptance  of  payment  is  a  waiver  of  the  right  of  the  holder  to 
object.  But  he  may  reject  the  tender,  and  then  it  is  of  no  effect, 
either  to  stop  interest  or  to  prevent  cost ;  nor  can  it  be  pleaded 
as  a  tender,  (y)  And  if  the  maker  or  acceptor  pay  negotiable 
paper  before  maturity,  and  it  afterwards,  before  maturity,  falls 
into  the  hands  of  an  innocent  party  for  value,  the  maker  or  ac- 
ceptor will  be  held  to  pay  the  amount  to  this  innocent  holder.  (i<?) 
Neither  is  the  maker  or  acceptor  bound  to  pay  without  pre- 
sentation of  the  note. (a;)     It  has  been  said  that  neither  is  bound 

(s)  In  Pfiel  V.  Van  Batenberg,  2  Camp.  439,  Lord  Ellenhorough  said:  "Show  that 
the  bills  weie  once  in  circulation  after  being  accepted,  and  I  will  presume  that  they 
got  back  to  the  acceptor's  hands  by  his  having  paid  them.  But  when  he  merely  pro- 
duces them,  how  do  I  know  that  they  were  ever  in  the  hands  of  the  payee,  or  any  in- 
dorsee, with  his  name  npon  them  as  acceptor.  Prove  the  bills  out  of  the  plaintiff's 
possession  accc]ited,  and  I  will  presume  that  they  got  back  again  by  payment." 

(<)   Infra,  c.  10,  §  2. 

(u)  Iitfra,  c.  12,  §  1. 

[v)  Bac.  Abr.  Tender  (D)  ;  Plowd.  172,  173  ;  Wade's  case,  5  Rep.  114  ;  Tillou  v 
Britton,  4  Halst.  120;  Kingman  v.  Pierce,  17  Mass.  247  ;  Saunders  v.  Frost,  5  Pick. 
2.59. 

(w)  Dc  Silva  V.  Fuller,  Chitty  on  Bills,  392  ;  Burridge  v.  Manners,  3  Camp.  193  ; 
Morley  v.  Culvcrwell,  7  M.  &  W.  174  ;  Griswold  v.  Davis,  31  Vt.  390.  So  if  he  takes 
a  release.       Dod  v.  Edwards,  2  Car.  &  P.  602. 

(x)  Hansard  v.  Robinson,  7  B.  &  C.  90,  9  Dow.  &  R.  8G0.  In  this  case  Lord  Ten- 
tenhn  said  :  "  The  principle  upon  which  all  such  actions  [on  bills  of  exchange]  is 
founded  is  the  custom  of  merchants.  The  general  rule  of  tlie  English  law  does  not 
allow  a  suit  by  the  assignee  of  a  chose  in  action.  The  custom  of  merc'i.ai.ts,  consid- 
ered as  part  of  the  law,  furnishes,  in  this  case,  an  exception  to  the  general  rule.  What 
then  is  the  custom  in  this  respect?  It  is  that  the  holder  of  the  bill  shall  present  the 
instrument  at  its  maturity  to  the  acceptor,  demand  payment  of  its  amount,  and,  upon 
rccei|)t  of  the  money,  deliver  up  tlic  bill.  The  accepto^  pftyi"}?  the  bill  has  a  right  to 
the  possession  of  the  instrument  for  his  own  security,  and  as  his  voucf.er  and  dis- 
charge pro  titulo,  in  his  account  with  the  drawer."  Sec  Musson  i-.  Lake,  4  How.  262  ; 
Bank  of  Vcrgenncs  v.  Cameron,  7  Barb.  143;  Freeman  v.  Boynt()i\,  7  Mass.  483  ; 
GiU)crt  V.  Dennis,  3  Met.  495.     A  distinction  luis  been  taken  in  this  ix'speet  between 


CH.  VII.]  WHERE   A   PARTY   SIGNS  AS   PRINCIPAL.  231 

to  pay  without  presentation  of  the  whole  note ;  and  hence  the 
holder  of  only  one  half  of  a  note  or  bill,  which  has  been  so  di- 
vided for  tlie  sake  of  security,  has  been  regarded  as  unable  to 
recover  on  it ;  for  an  innocent  holder  of  the  other  half  wonld 
have  quite  as  good  a  claim ;  and  no  promisor  can  be  held  liable 
to  pay  the  amount  of  his  note  to  two  different  parties  ;  and  there- 
fore not  to  one,  unless  that  payment  will  protect  him  from  the 
other.  Tliis  question  is  very  fully  considered  in  our  chapter  on  a 
Lost  Bill  or  Note.  In  this  connection  we  will  only  say,  that,  on 
the  whole,  we  should  state  the  law  thus :  The  holder  of  one  half 
of  a  negotiable  bill  or  note  may  generally  recover  upon  it  tiie 
amount  of  the  bill  or  note,  provided  he  sliow  that  he  holds  it  by 
good  title ;  but  in  some  of  our  States,  and  perhaps  in  all  under 
some  circumstances,  he  would  be  required  to  give  indemnity  to 
the  payer. (y/)     But  this  question  we  consider  elsewhere. 

negotiable  and  unneyotiable  paper,  making  delivery  to  the  maker  on  payment  necessaiy 
in  the  former,  and  unnecessary  in  the  latter.  There  is  also  a  conflict  of  authority  on 
the  point ;  the  English  and  some  American  cases  holding  the  law  as  stated  in  the 
text,  while  many  American  cases  decide  that  the  holder  cannot  be  compelled  to  deliver 
up  the  note.  There  are  also  decisions  to  the  effect  that  the  holder,  after  tendering  ade- 
quate security,  may  maintain  an  action  on  the  note  without  presentation.  This  suhjcct 
is  considered  infra,  Vol.II.  ch.  8. 

(?/)  In  Mayor  v.  Johnson,  3  Camp.  324,  a  bank-note  payable  to  bearer  was  cut  in 
two,  and  one  half  sent  by  mail.  The  bag  containing  it  was  stolen  from  tlie  mail. 
Suit  being  brought  on  the  other  half,  the  plaintiffs  were  nonsuited.  Lord  Ellenborongh 
said  :  "  It  is  usual  and  proper  to  pay  u])on  an  indemnity ;  but  payment  can  be  enforced 
at  law  only  by  the  production  of  an  entire  note,  or  by  proof  that  the  instrument,  or  the 
part  of  it  which  is  wanting,  has  been  actually  destroyed."  Mossop  v.  Eadon,  16  Ves. 
431,  was  a  bill  in  equity  to  compel  payment  of  a  promissory  note  which  had  been  cut 
in  two,  one  of  the  parts  having  been  lost.  The  other  part  was  produced.  The  bill  was 
dismissed,  on  the  ground  that  an  action  might  be  maintained  thereon  at  law.  The  note 
had  never  been  negotiated ;  therefore  this  case  is  neither  in  conflict  with,  nor  a  confirma- 
tion of,  Mayor  v.  Johnson.  But  Mayor  v.  Johnson  cannot  be  law,  because  a  half  of  a 
bill  is  not  a  negotiable  instrument,  and  if  it  were,  the  holder  of  the  lost  part  must  have 
taken  it  with  notice  of  the  existence  of  the  other  half,  and  at  his  peril.  The  reason 
given,  that  the  bank  might  be  liable  to  pay  twice,  is,  at  the  best,  a  very  doubtful  one. 
The  remedy  of  the  holder,  in  good  faith,  of  the  lost  part,  would  be  against  the  party 
from  whom  he  received  it.  For  these  reasons,  the  American  cases  are  in  direct  conflict 
with  Mayor  v-  Johnson.  Hinsdale  v.  Orange  Bank,  6  Wend.  378;  Armat  i'.  Union 
Bank,  2  Cranch,  C.  C.  1 80,  2  Nott  &  jNI.  471,  note ;  Bullet  v.  Bank  of  Pa.,  2  Wash.  C.  C 
172  ;  Martin  v.  Bank  of  U.  S.,  4  Wash.  C.  C.  253;  Patton  v.  State  Bank,  2  Nott  & 
M  464  ;  Allen  v.  State  Bank,  1  Dev.  &  B.  Eq.  1  ;  Bank  of  U.S.  v.  Sill,  5  Conn.  106  ; 
Bank  of  Va.  v.  Ward,  6  Munf.  169  ;  Farmers'  Bank  v.  Reynolds,  4  Hand.  Va.  186  ; 
Commercial  Bank  v.  Benedict,  18  B.  Mon.  307  ,  Northern  Bank  v.  Farmers'  Bank, 
id.  .506.  But  where  the  notes  of  a  bank  had  been  so  severed  as  to  make  twelve  bills 
out  of  eleven,  it  has  been  held  that  the  bank  is  no  longer  liable  on  the  notes,  since  the 


232  NOTES   AND   BILLS.  [CH.  \U. 

The  owner  of  a  note  who  demands  payment  of  it  may  some- 
times be  unable  to  produce  and  present  it,  because  it  has  been 
lost  or  destroyed.  Here  arises  a  different  and  peculiar  question, 
which  will  be  considered  hereafter,  (z) 

If  a  note  be  drawn  with  the  intent  that  it  shall  be  signed  by 
several  persons,  and  one  or  more  of  them  sign  it  on  a  representa- 
tion by  the  payee  of  the  party  to  whom  it  is  to  be  given,  or  by  an 
understanding  with  him  that  the  others  will  sign  it,  and  they  do 
not,  it  is  not  valid  against  the  actual  signers ;  (a)  but  if  the  sign- 
ers, with  a  knowledge  of  the  facts,  waive  their  right  to  object,  it 
becomes  their  note. (6) 

necessary  effect  of  sach  mutilation  is  to  defraud  the  bank  and  to  injure  the  community; 
and  such  notes  present  on  their  face  such  unmistakable  evidence  of  fiaud  and  forgery 
as  to  amount  to  notice,  or  to  deter  a  reasonably  prudent  man  from  receiving  it  in  the 
ordinary  course  of  business.  Northern  Bank  v.  Farmers'  Bank,  18  B.  IMon.  506. 
Whether  "Worcester  Co.  Bank  i\  Dorchester  &  M.  Bank,  10  Cush.  488,  which  decides 
that  a  party  taking  a  bank-bill  in  good  faith  may  recover  upon  it,  although  guilty  of 
gross  negligence  in  not  ascertaining  that  it  had  been  fraudulently  put  into  circulation, 
would  cover  such  a  case,  qucere.  Dean  v.  Speakman,  7  Blackf.  317,  is  authority  neither 
way,  as  the  note  had  never  been  negotiated.  Some  of  the  cases  decide  that  the  bank 
has  a  right  to  require  indemnity.  Allen  v.  State  Bank,  1  Dev.  &  B.  Eq.  1  ;  Bank  of 
Va.  V.  Ward,  6  Munf  169 ;  Commercial  Bank  v.  Benedict,  18  B.  Mon.  307.  In  Far- 
mers' Bank  v.  Ileynolds,  4  Kand.  Va.  186,  it  was  held,  that  the  plaintiff  cannot  recover 
interest  nor  costs,  unless  he  tenders  indemnity  before  bringing  the  action.  In  Armat 
V.  Union  Bank,  the  bank  offered  to  pay  half  the  value  of  the  bill,  but  the  plaintiff  was 
allowed  to  recover  the  full  value.  In  order  to  recover  on  such  bill  or  note,  the  plain- 
tiff must  produce  one  half,  and  prove  ownership  of  the  other.  Cases  supra.  The 
United  States  Bank  gave  notice  that  it  would  not  be  responsible  for  any  of  its  hills 
wliich  should  be  voluntarily  cut  in  two,  except  on  production  of  both  the  parts.  The 
court  in  Bank  of  U.  S.  r.  Sill,  5  Conn  106,  in  speaking  of  this  notice,  say  it  "is  as 
extraordinary  as  it  is  novel,  and  is  probably  the  first  instance  of  a  debtor's  undertaking 
to  prescribe  terms  to  his  creditors."  This  is  only  a  diclnm,  ns  the  court  held  that  notice 
to  the  plaintiff  had  not  been  proved.  But  in  Martin  v.  Bank  of  U.  S.,  4  "Wash.  C.  C. 
253,  the  validity  of  such  notice  was  denied  by  \VusIii'ii/;l<>n,  J.,  who  said  :  On  what 
principle  can  one  party  to  a  contract  absolve  himself  from  its  obligations  without  the 
assent  of  the  other?  I  know  of  none.  If  the  bank  can  dictate  to  the  holders  of  its 
notes  the  condition  stated  in  this  notice,  upon  the  performance  of  which,  and  not  other- 
wise, it  would  pay  them,  it  might  with  equal  pro|)riety  prescribe  any  other  condition, 
and  declare  in  what  case  it  would  pay  and  in  what  not. 
(z)  Infra,  Vol.  II.  ch.  9. 

(a)  Fvans  v.  Brcmridge,  2  Kay  &  J.  174,  35  Eng.  L.  &  Eq.  397  ;  Awde  i;.  Dixon,  6 
Exch.  809  ,  Hill  V.  Swectscr,  5  N.  II.  168.  See  Smith  v.  Doak,  3  Texas,  2!  5  ;  Martin 
V.  Stribliiig,  1  Speers,  23;  Bean  v.  Parker,  17  Mass.  591  ;  Dunn  v.  Smith,  12  Smedes 
&  M  602  ;  Miller  v.  Gamhie,  4  Barb.  146.  In  Bank  of  Mo.  v.  Thillips,  17  Misso.  29, 
it  was  held,  that  it  is  no  defence  for  an  indorscr,  that  he  in<lorsed  the  note  iijion  the 
express  condition  that  it  should  also  be  indorsed  by  another  person,  when  it  does  not 
appear  that  the  plaintiff  knew  the  condition. 

(b)  Leaf  v.  Oibbs,  4  Car.  &  P.  466. 


CH.  Vn.]  WHERE   A   PARTY   SIGNS   AS   SURETY.  233 

SECTION    II. 

WHERE    A    PARTY    SIGNS    AS    SURETY. 

One  may  sign  a  note  merely  as  surety.  If  he  so  call  himself  in 
the  note,  he  is  only  a  surety  as  to  all  parties. (c)  If  two  persons 
sign  a  joint  and  several  note,  and  one  of  them  pays  the  whole 
and  sues  the  other  for  contribution,  this  other  may  show  by  evi- 
dence that  he  signed  only  as  surety  for  the  first,  who  therefore 
has  no  claim  on  him  for  contribution. (^Z)  For  the  note  is  not  a 
written  contract  between  tlie  makers,  although  the  language  is 
prima  facie  evidence  of  their  relations  to  each  other ;  but  it  is  a 
written  contract  between  them  and  the  payee.  This  contract  is 
to  pay  money  at  a  specified  time,  and  on  this  point,  at  least,  it 
cannot  be  varied  by  parol  evidence.  On  the  question  whether 
parol  evidence  is  admissible  to  show  that  one  who  signed  a  note 
as  a  joint,  or  joint  and  several  maker,  was  only  a  surety  for  his 
co-maker,  in  an  action  by  the  holder  against  such  surety,  the  au- 
thorities are  conflipting  and  uncertain.  It  seems  to  be  settled, 
that  where  the  fact  was  not  known  to  the  holder  previous  to  the 
maturity  of  the  note,  such  evidence  is  inadmissible  ;  but  where 
this  relation  was  known  to  the  holder  at  the  time  of  entering  into 
the  contract,  the  evidence  is  admissible  in  equity.  But,  at  law, 
it  is  urged,  on  the  one  hand,  that  this  is  an  attempt  to  vary  the 
contract ;  that  the  parties,  having  called  themselves  joint,  or  joint 
and  several,  promisors  in  the  contract,  cannot  assume  a  different 


(c)  See  Hunt  v.  Adams,  5  Mass.  358,  6  Mass.  519,  7  Mass.  518  ;  Humphreys  v.  Crane, 
5  Calif.  173  ;  Bryan  v.  Berry,  6  Calif.  394  ;  Ex  parte  Wilson,  3  Mont.  D.  &  De  G.  57, 
supra,  p.  136.  A  note  may  be  accepted  by  one  as  surety;  see  Boyd  v.  Plumb,  7  Wend. 
309.  The  signature  need  not  l)e  on  the  face  of  the  note.  Palmer  v.  Grant,  4  Conn. 
389;  Marbergery.  Pott,  16  Penn.  State,  9.  The  suretyship  is  sufficiently  indicated  by 
writing;  the  word  ''  surety,"  or  "  security,"  after  the  signature.  Hunt  i\  Adams,  supra, 
liobison  V.  Lyle,  10  Barb.  512.  See  Perkins  v.  Goodman,  21  Barb.  218.  As  to  the 
immediatcness  of  liability  to  tlic  payee  of  parties  signing  as  principal  and  surety,  these 
words  are  said  to  be  words  of  descrijjtion  only.  Harris  v.  Brooks,  21  Pick.  195  ;  Davis 
i;.  Barrington,  10  Foster,  517.  See  further,  Sisson  v.  Barrett,  6  Barb.  199,  2  Comst. 
406  ;  Robison  v.  Lyle,  10  Barb.  512 ;  Apgar  v.  Hiler,  4  N.  J.  812.  The  character  in 
which  the  parties  signed  is  presumed  from  the  face  of  the  note.  Lord  v.  Moody,  41 
Maine,  127. 

(d)  See  Harris  v.  Brooks,  21  Pick.  195;  M'Gce  p.  Prouty,  9  Met.  547  ;  Laphara  v. 
Barnes,  2  Vt.  213;  Apgar  v.  Hiler,  4  N.  J.  812. 

20* 


234  KOTES  AND   BILLS.  [CH.  VIL 

relation  or  character  by  extraneous  evidence.  On  the  other 
hand,  it  is  contended,  that  the  note  does  not  express  the  whole 
contract,  since  it  depends  materially  upon  delivery,  and  the  pur- 
poses for  wliich  delivery  is  made  ;  that  the  terms  of  the  note  only 
offer  a  presumption  of  the  relation  in  which  the  parties  stand  to 
each  other  ;  that  this  is  a  mere  collateral  fact,  which  can  be 
proved,  and  the  presumption  rebutted,  by  parol  evidence.  We 
consider  that  the  weight  of  authority  and  principle  is  in  favor  of 
the  admission  of  such  evidence. (e) 

(e)  In  JIanley  v.  Boycot,  2  Ellis  &  B.  46,  an  action  by  tlie  payee  of  a  joint  and 
several  note  .against  one  of  the  makers,  the  defence  being  that  the  defendant  was  in 
reality  a  surety,  the  court  held  a  plea  bad,  because  it  did  not  allege  that  theuote  was 
delivered  by  tlie  defendant  to  the  plaintiffs,  as  surety,  and  that  they  agreed  so  to  re- 
ceive it  from  him.  Lord  Campbell,  in  delivering  the  opinion  of  tlic  court,  said  :  "But 
cases  in  which  it  can  be  proved  that,  at  the  time  wiien  a  note  was  made,  or  a  bill  was 
accepted  and  handed  over  to  the  payee,  the  maker  or  acceptor  being  only  a  surety,  the 
payee,  knowing  this  fiict,  agreed  to  receive  it  from  the  maker  as  surety  only,  may 
admit  of  a  diftVrent  construction,  and,  consistently  with  our  judgment,  it  maybe  held  in 
such  cases,  that  the  maker  or  acceptor  is  discharged,  by  time  being  given  to  the  principal 
debtor."  In  Pooley  v.  Harradine,  7  Ellis  &  B.  431,  40  Eng.  L.  &  Eq.  96,  the  defendant, 
a  joint  maker,  pleaded,  by  way  of  equitable  defence,  that  he  signed  tlic  note  only  for 
the  accommodation  of  the  other  promisor,  and  only  as  his  surety  ;  that  tiie  note  was 
accepted  by  the  plaintiff  upon  the  express  agreement  that  the  defendant  should  be  held 
only  as  surety  ;  and  th.at  the  plaintiff  had  given  time  to  the  principal  debtor  by  a  valid 
agreement,  without  the  defendant's  knowledge  and  consent,  and  to  iiis  prejudice.  The 
plaintiff  demurred,  and  the  court  lield  that  the  plea  stated  a  good  equitable  defence  at 
law  to  the  action.  Coleridije,  J.  said  :  "  In  the  more  recent  cases  at  law,  liowevcr,  tho 
rule  in  question  has  apparently  been  treated  as  arising  out  of  the  original  contract  with 
the  creditor ;  and  if  this  was  a  plea  of  a  legal  defence  we  siiould  ])robabIy  have  felt  bound 
by  those  autliorities,  and  have  left  it  to  a  court  of  error  to  consider  the  whole  question, 
taking  it  into  their  consideration  wiietiier  the  same  rule  in  such  matters  ought  not  to 
exist  in  courts  of  law  and  e(juity,  and  to  decide,  if  there  be  a  difference,  what  the 
rule  should  be.  As  we  are,  however,  called  upon  to  deal  with  this  case  as  if  we 
were  sitting  in  a  court  of  equity,  we  think  we  ought  to  decide  it  according  to  what  wo 
believe  to  be  the  doctrine  of  courts  of  equity.  We  give  our  judgment  fur  tlie  defendant 
on  the  present  i)lea,  on  the  ground  that  it  a[)pears  to  us  sufficiently  to  state  tiiat  the 
relation  of  principal  and  surety  existed  between  the  defendant  and  tlie  principal  debtor 
inter  se,  and  that  the  plaintiff  had  knowledge  of  that  fact  when  the  notes  were  made 
and  received  by  him,  and  when  he  entered  into  a  binding  agreement  to  give  time  to  the 
principal  debtor."  We  arc  aware  of  no  autiioritative  case  at  law  in  l-'ngland  which 
expressly  decides  the  point;  thougli  the  language  used  in  .some  cases  tends  strongly 
towards  rejecting  the  evidence.  Sec  Strong  v.  Foster,  17  C.  B.  201  ;  Ilollier  v.  Eyre, 
9  Clark  &  F.  45  ;  I'ooley  v.  Harradine,  supra;  Manlcy  v.  Boycot,  sHjim  ;  Price  i;.  Ed- 
munds, 10  B  &  C.  578;  Perfect  v.  Musgravc,  6  Price,  111.  But  it  was  admitted  in 
two  ca.ses  at  Nisi  Prius,  —  Hall  v.  Wilcox,  1  Moody  &  li.  58  ;  Garrett  c.  Jull,  I  Selw. 
N.  P.,  1  Ith  cd  ,407.  lu  the  following  cases  the  defendant  was  allowed  to  show  that  he 
signed  as  surety,  and  that  the  plaintiff,  having  notice,  had  given  lime,  or  relinquislicd 
Bccurity  ;  nor  does  it  appear  that  the  note  was  taken  with  such  knowledge,  or  agreed 


CH.  VII.]  WHERE   A   PARTY   SIGNS   AS   SURETY.  235 

And  if,  of  tlirce  who  sign  a  note,  two,  A  and  B,  call  themselves 
sureties,  and  A  pays  the  note  and  calls  on  B,  his  co-surety,  for 
contribution,  this  co-surety  may  show  a  separate  agreement  be- 
tween himself  and  A,  to  tlic  effect  that  he  signed  at  the  request 
of  A,  who  agreed  to  pay  the  whole  if  the  principal  failed,  and 
not  to  call  on  B  for  contribution. (/)  And  we  should  apply  the 
same  rule  if  A  and  B  were  sureties  in  fact,  but  appeared  on  the 
note  only  as  joint  promisors,  or  joint  and  several  promisors.  But 
tlie  authorities  on  this  whole  subject  are  conflicting,  and  leave  the 
law  in  some  uncertainty.  It  has  been  held  that  one  who  signed 
a  note  appai-ently  as  principal,  but  is  a  surety  in  fact,  within  the 


to  be  so  held.  lioriie  );.  Bodwell,  5  Gray,  457  ;  Carpenter  v.  King,  9  Met.  f>\\  ;  Har- 
ris (.'.  Brooks,  21  Pick.  19.t;  Wilson  v.  Green,  25  Vt.  450;  Grafton  Bank  v.  Kent,  4 
N.  H.  221  ;  Grafton  Bunk  v.  Woodward,  5  N.  H.  99.  See  Pain  v.  Packard,  13  Johns. 
174;  King  v.  Baldwin,  2  Johns.  Ch.  354;  Herrick  v.  Borst,  4  Hill,  650;  Mariners' 
Bank  i:  Abbott,  28  Maine,  280  ;  Lime  Rock  Bank  v.  Mallett,  42  Maine,  349  ;  Fowler  v. 
Brooks,  13  N.  II.  240;  Davis  v.  Barrington,  10  Foster,  517.  In  Wheat  v.  Kendall,  6 
N.  H.  504,  it  distinctly  appeared  that  the  plaintiff  bonght  the  note  before  it  became  due, 
without  notice  of  any  suretyship,  but  that  he  subsequently,  and  before  giving  time  to 
the  principal,  had  notice  that  the  defendant  was  a  surety.  Parker,  J.  said  :  "  The 
injury  to  the  surety  is  the  same  as  if  the  creditor  liad  possessed  the  knowledge  at  the 
time  the  note  was  taken.  He  could  not  pay  and  take  up  the  note  within  the  term 
of  the  extended  credit,  and  seek  indemnity  from  his  principal  as  he  might  otherwise 
have  done.  All  that  justice  requires  is,  that  sueh  contract  should  not  prejudice  the 
right  of  the  creditor  against  the  surety  until  he  had  notice  that  he  was  surety.  When 
lie  has  notice  of  that  fact,  all  that  he  is  required  to  do  is,  not  to  undertake  to  continue 
the  liability  of  the  surety  by  a  new  agreement  with  the  principal  without  the  assent  of 
the  surety.  This  manifestly  imposes  no  hardship  upon  the  creditor."  See  Peake  v. 
Dorwin,  25  Vt.  28;  Claremont  Bank  v.  Wood,  10  Vt.  582;  Artcher  v.  Douglass,  5 
Denio,  509  ;  Elwood  r.  Deifendoif,  5  Barb.  398;  Gahn  v.  Niemcewicz,  11  Wend.  312; 
Branch  Bank  v.  James,  9  Ala.  949  ;  Lime  Rock  Bank  v.  Mallett,  34  Maine,  546 ;  Dick- 
erson  v.  Board  of  Commissioners,  6  Ind.  1 28  ;  Burke  v.  Crugcr,  8  Texas,  66,  1 1  id.  694. 
The  burden  is  on  the  defendant  to  prove  that  the  plaintiff  had  knowledge  of  the  surety- 
ship. Wilson  V.  Foot,  11  Met.  285.  The  weight  of  authority  in  America  we  conceive 
to  be  in  favor  of  the  admissibility  of  the  evidence.  In  Ohio,  the  evidence  is  inadmis- 
sible, the  remedy  of  the  actual  surety  being  only  in  equity,  on  the  ground  that  this 
would  constitute  no  defence  to  all  the  plaintiffs.  Farrington  v.  Gallaway,  10  Ohio, 
543  ;  Slipher  v.  Fisher,  1 1  Ohio,  299.  In  Maryland,  Yates  v.  Donaldson",  5  Md. 
389.  So,  perhaps,  in  Connecticut,  but  this  point  was  not  decided.  Bull  v.  Allen, 
19  Conn.  101  ;  Orvis  v.  Newell,  17  Conn.  97.  And  in  California,  Kritzer  v.  Mills, 
9  Calif.  21.  In  Sprigg  v.  Bank  of  Mount  Pleasant,  10  Pet.  257,  it  was  held,  that 
:iie  defendant  in  an  action  on  a  single  bill  or  bond,  signed  expressly  as  principal,  was 
estopped  from  showing  that  the  plaintiff  knew  him  to  be  a  surety.  The  fact  that  the 
surety  nK'civcd  part  of  the  consideration  from  the  principal,  as  a  gift,  will  not  make 
him  a  joint  principal.  Fraser  v.  McConnell,  23  Ga.  368.  See  Wilson  v.  Wheeler,  29 
Vt.  484 

(/)  Apgar  V.  Hiler,  4  N.  J.  812. 


2ot)  NOTES   AND   BILLS.  [CH.  VU. 

kno\rledge  of  the  holder,  and  affixes  his  signature  after  the  nanaes 
of  others  as  signers  are  forged  upon  the  note,  and  while  it  is  in 
the  hands  of  him  for  whose  benefit  it  is  drawn,  so  far  sanctions 
and  affirms  the  genuineness  of  the  forged  signatures  that  he  can- 
not take  advantage  of  the  fraud  in  his  defence  against  the  holder, 
unless  he  shows  that  the  holder  was  privy  to  the  fraud. (/?-)  But 
where  the  surety,  after  signing  the  note,  intrusted  it  to  a  princi- 
pal to  be  discounted  at  a  bank,  and  before  presenting  it  at  the 
bank  the  principal  altered  the  amount  to  a  larger  sum,  it  was 
held  that  the  surety  was  not  liable.  The  principle  being,  that, 
where  the  plaintiff  and  defendant  are  equally  innocent,  the  loss 
must  fall  on  the  party  who  first  placed  confidence  in  the  fraudu- 
lent instrument. (A)  If  a  surety  signs  a  note  which  shows  on  its 
face  that  it  is  to  be  discounted  at  a  particular  bank,  and  which  is 
known  to  the  holder  to  be  drawn  for  the  purpose  of  raising 
money  in  this  way,  the  surety  will  be  discharged  by  any  different 
negotiation  of  the  note.(t)  He  has  a  right  to  require  perfect 
good  faith  in  all  transactions  involving  his  suretyship,  whether 
between  the  principal  and  the  parties  with  whom  the  surety  ex- 
pressly contracts,  or  between  either  of  them  and  other  persons. (7) 
Therefore,  if  a  creditor  conceal  from  the  surety  any  bargains  or 
stipulations  made  before  the  suretyship  is  entered  into  which 
make  the  contract  more  onerous  to  the  principal  debtor  than  it 
seems  to  be,  this  is  a  fraud  which  invalidates  the  suretyship. (A*) 
The  creditor  is  not  obliged  to  proceed  entirely  against  the 
principal  debtor,  even  if  he  be  so  requested  by  the  surety.  The 
holder  is  not  obliged  to  give  notice  to  the  surety  that  the  princi- 
pal debtor  has  failed  to  pay,  and  that  he  is  looked  to  on  his  sure- 
tyship. It  is  quite  certain  that  mere  omission  to  sue  the  prin- 
cipal, witliout  i-cquest  by  the  surety,  will  not  discharge  the 
surety ;  (/)    not  even  where,  by  the  delay,  the  remedy  of  the 


(7)  Sclser  V.  Brock,  3  Oliio  State,  302.  In  an  action  against  the  surety  alone,  the 
phiiiitiff  need  not  prove  tlie  signature  of  tlic  principal.     Bond  v.  Storrs,  13  Conn.  412. 

(h)  Agawam  Bank  v.  Sears,  4  Gray,  9.5. 

(i)  Dewey  v.  Cochran,  4  Jones,  184  ;  Southcrland  v.  Whitaker,  5  id.  5.  Sec  Smith 
V.  Knox,  3  Esp.  46. 

(j)  Supni,  p.  132,  notcy,  and  p.  140. 

(k)  SioMc  I'.  Coinpton,  .5  Bing  N.  C.  142,  6  Scott,  846  ;  sec  Pidcock  v.  Bishop,  3 
B.  &  C.  eo.")  ;  Evans  v.  Keeland.  9  Ala.  42;  Selser  v.  Brock,  3  Ohio  State,  302; 
Graves  v.  Tucker,  10  Smedcs  &  M.  1  ;  Watriss  v.  Pierce,  32  N.  II.  5fiO. 

(/)   Freeman's  Bank  ».  Rollins,  13  Maine,  202;  Townsend  i:  Kiddle,  2  N.  11.448; 


CH.  VII.]  WHERE   A   PARTY   SIGNS   AS   SURETY.  237 

surety  is  lost.(w)  And  the  authorities  wouhl  lead  to  the  couclu. 
sion,  that  this  would  be  the  rule,  even  where  the  surety  had  ex- 
pres.sly  requested  that  demand  should  be  made  or  suit  brought 
against  the  principal. (w)  And  it  is  said  to  make  no  difference, 
if  the  surety  offers  indemnity. (o)  But  this,  which  we  think  the 
better  rule,  is  not  uncontradicted. (/?)  So  it  is  said  a  refusal  to 
prosecute  a  suit  against  the  principal,  which  has  been  already 
commenced,  does  not  discharge  the  surety. (7)  But  the  authori- 
ties we  cite  show  that  the  courts  have  found  some  difficulty  in 
determining  questions  of  this  kind.(r)     And  we  should  be  in- 

Baker  v.  Marshall,  16  Vt.  522  ;  Hunt  v.  Bridgham,  2  Pick,  581 ;  Johnson  v.  Planters' 
Bank,  4  Sinetles  &  M.  165;  Humphreys  v.  Crane,  5  Calif.  173;  Ilartman  v.  Burlin- 
ganie,  9  Calif.  557.  See  Orine  v.  Young,  Holt,  84;  Eyre  v.  Everett,  2  Russ.  381  ; 
Heath  v.  Key,  1  Youuge  &  J.  434  ;  English  v.  Darley,  2  B.  &  P.  61  ;  Comhe  v.  Woolf, 
8  Bing.  156  ;  Strong  v.  Foster,  17  C.  B.  201  ;  Hubbard  v.  Davis,  1  Aik.  296  ;  Naylor 
V.  Moody,  3  Blaekf  92  ;  Dehutf  «.  Turbett,  3  Yeates,  157  ;  Thursby  v.  Gray,  4  Yeates, 
518;  Burn  v.  Poaug,  3  Desaus.  596;  Jordan  v.  Trumbo,  6  Gill  &  J.  103;  U.  S.  1; 
Simpson,  3  Penn.  437  ;  Cnran  v.  Colbert,  3  Ga.  239. 

(m)   Townscnd  v.  Riddle,  2  N.  H.  448. 

(n)  Page  v.  Webster,  15  Maine,  249  ;  Davis  v.  Huggins,  3  N.  H.  231  ;  Mahurin  v. 
Pearson,  8  N.  H.  539  ;  King  v.  Baldwin,  2  Johns.  Ch.  554 ;  Nichols  v.  MeDowell,  14 
B.  Mon.  6 ;  Hogaboom  v.  Herrick,  4  Vt.  131 ;  Bellows  v.  Lovell,  5  Pick.  307  ;  Frye  v 
Barker,  4  id.  382  ;  Dennis  v.  Rider,  2  McLean,  451  ;  King  v.  State  Bank,  4  Eng.  185. 
See  Manning  v.  Shotwell,  2  South.  584  ;  Pickett  v.  Land,  2  Bailey,  608  ;  Croughton  ». 
Duval,  3  Call,  69 ;  Buchanan  v.  Bordley,  4  Harris  &  M.  41  ;  Pintard  v.  Davis,  1  N.  J. 
632  ;  Can-  v.  Howard,  8  Blaekf.  190;  Colerick  v.  McCleas,  9  Ind.  245  ;  Taylor  r.Beck, 
13  III.  376  ;  Howard  v.  Brown,  3  Ga.  523;  Abcrcrombie  v.  Knox,  3  Ala.  728.  Mont- 
pelier  Bank  v.  Dixon,  4  Vt.  587. 

(o)  Adams  Bank  v.  Anthony,  18  Pick.  238. 

(p)  See  Bellows  v.  Lovell,  5  Pick.  307;  Beardsley  v.  Warner,  6  Wend.  610; 
Wright  V.  Stockton,  5  Leigh,  153  ;  In  re  Babcock,  3  Story,  393. 

(q)  Bellows  v.  Lovell,  5  Pick.  307. 

(/•)  In  Pain  v.  Packard,  13  Johns.  174,  the  court  held  that  neglect  by  the  holder  to 
sue  the  solvent  principal,  at  the  mere  request  of  the  surety,  and  the  subsequent  insol- 
vency and  absconding  of  the  ])rincipal,  discharge  the  surety.  This  was  denied  by 
Chancellor  Kent,  in  King  v.  Baldwin,  2  Johns.  Ch.  554,  but  was  affirmed  by  the  Court 
of  Errors,  in  the  same  case,  on  appeal,  17  Johns.  .'84,  overuling  the  Chancellor.  Al- 
though this  is  now  held  to  be  the  law  in  New  York,  it  is  subjected  to  strict  limitations. 
Warner  v.  Beardsley,  8  Wend.  194;  sec  Row  r.  Pulver,  1  Cowen,  2-16;  Ruggles  v. 
Holden,  3  Wend.  216  ;  Huffman  v.  Hulbert,  13  Wend.  377  ;  Valentine  v.  Farrington, 
2  Edw.  Ch.  53  ;  Merritt  v.  Lincoln,  21  Barb.  249.  In  Herrick  v.  Borst,  4  Hill,  650, 
Cowen,  J.  said  that  the  doctrine  "  came  into  this  court  without  precedent,  was  after- 
wards repudiated  even  by  the  Court  of  Chancery,  as  it  has  always  been  held  at  law 
and  in  equity  in  England,  but  was  restored,  on  a  tic,  by  the  casting  vote  of  a  layman." 
See  also  Schroeppell  v.  Shaw,  3  Comst.  446  ;  Fuller  v.  Loring,  42  Maine,  481  ;  Bull 
V.  Allen,  19  Conn.  101.  In  Pennsylvania  the  rule  of  Pain  v.  Packard  has  been 
adopted,  the  want  of  a  remedy  in  equity  in  that  State  being  mentioned  as  a  reason. 
See  Cope  v.  Smith,  8  S.  &  R.  110;  Erie  Bank  v.  Gibson,  1  Watts,  143 ;  Marberger  ». 


238  NOTES   AND   BILLS.  [CH.  VH. 

clhied  to  say,  that  in  equity  at  least,  if  not  at  law,  there  should 
be  an  application  of  the  rule  established  in  cases  of  guaranty  and 
suretyship  on  bonds,  so  far,  at  least,  that  the  surety  might  have 
«ome  remedy  where  he  was  injured  by  wanton  and  inexcusable 
neglect  on  the  part  of  the  holder.  (5) 

It  is  a  general  rule,  that  if  the  creditor,  with  knowledge  of  the 
suretyship,  makes  any  binding  contract  with  the  principal,  with- 
out the  consent  of  the  surety,  which  varies  the  terms  of  the 
original  imdertaking  for  the  performance  of  wliich  he  became 
responsible,  and  is  prejudicial  to  him,  he  is  discharged.  For  the 
responsibility  of  the  surety  rests  upon  the  validity  of  his  original 
contract ;  and  this,  in  turn,  depends  upon  the  assent  of  both  par- 
ties, which  is  an  essential  element  of  every  valid  contract. (/) 

Pott,  16  Penn.  State,  9.  The  request  need  not  be  in  writing.  Cope  v.  Smith,  supra; 
Erie  Bank  v.  Gibson,  supr-a.  But  it  must  contain  a  positive  order  to  sue,  with  a  dec- 
hiration  that  the  surety  will  hold  himself  absolved  if  it  is  not  complied  witii.  Greena- 
walt  V.  Kreider,  3  Penn.  State,  264  ;  Gardner  ».  Ferree,  15  S.  &  R.  28.  No  tender  of  ex- 
penses or  stipulation  to  pay  them  is  necessary,  unless  required  by  tiv3  creditor.  Wetzel 
V.  Sponsler,  18  Penn  State,  460.  For  other  cases  approving  the  rule  in  Pain  v.  Pack- 
ard, see  Lang  v.  Brevard,  3  Strob.  Eq.  59 ;  Goodman  v.  Griffin,  3  Stew.  IGU  ;  Hancock 
V.  Bryant,  2  Yerg.  476  ;  State  Bank  v.  Watkins,  1  Eng.  123.  In  Alabama,  Arkansas, 
Georgia,  Illinois,  Indiana,  Missouri,  Ohio,  Tennessee,  Texas,  and  Vir>:inia,  this  sub- 
ject has  been  regulated  by  statute.  In  Louisiana  the  rule  of  the  Civil  Law,  allowing 
the  surety  to  require  the  creditor  to  proceed  against  the  principal,  [irevails.  Civ.  Code 
(1838),  art.  3015. 

In  Clark  v.  Hill,  cited  in  McCoUum  v.  Hinckley,  9  Vt.  143,  the  surety  was  dis- 
charged by  the  neglect  of  the  holder  to  prove  his  claim  against  the  insolvent  estate  of 
the  deceased  ]iiiucipal  until  the  claim  was  barred,  and  his  pretending  to  have  mislaid  the 
note  and  refusing  a  tender  in  bills,  the  surety  having  requested  the  holder  to  i)roceed 
against  the  estate  of  the  principal.  In  McCollum  v.  Hinckley,  where  the  holder  neg- 
lected to  i)rove  his  claim,  but  without  notice  of  the  death  of  the  principal  or  n-quest  by 
the  surety  to  j)r<)cced,  the  surety  was  held  to  be  discharged  to  the  amount  which  could 
have  been  realized  out  of  the  estate.  These  two  last  cases  were  bills  in  equity.  In 
Bank  of  Manchester  v.  Bartlett,  13  Vt.  315,  it  was  held  that  a  mere  refusal  to  proceed 
against  the  insolvent  estate  of  the  deceased  principal,  unaccompanied  by  acts  of  posi- 
tive and  wilful  interference,  would  not  discharge  the  surety. 

{s)  See  White  v.  Ilowland,  9  Ma.ss.  314  ;  Oxford  Bank  r.  Haynes,  8  Pick.  423; 
Commerical  Bank  v.  French,  21  Pick.  486;  Marberger  v.  Pott,  16  Penn.  State,  9; 
Sibley  v.  McAllastcr,  8  N.  II.  389.  In  Read  v.  Cutts,  7  GrecnI.  186,  Melhn,  C.J. 
said  :  "  No  demand  of  the  debt,  or  notice  of  its  non-payment  by  the  principal,  need  be 
proved  in  an  action  against  such  surety  in  any  case."  Sec  also  Gilibs,  C.  J.,  Ornic  v. 
Young,  Ilolt,  84;  Wright  v.  Simpson,  6  Ves.  714;  Sailly  u.  Elmore,  2  Paige,  497 ; 
Beebe  i'.  Dudley,  6  Foster,  249.  In  California  a  surety  is  entitled  to  dennnid  and 
notice.  Bryan  v.  Berry,  6  Calif.  394.  Not,  however,  unless  the  surctysliip  apj)ears  on 
the  note.  KritziT  v.  Mills,  9  Calif.  21.  Presentment  with  demand  of  payment  is  not 
necessary.     Bond  v.  Storrs,  13  Conn.  412. 

(f)  Mayhcw  v  Boyd,  5  Md.  102  ;  King  v.  Baldwin,  17  Johns.  384  ;  Watriss  v.  Pierce, 


CH.  Vn.]  WHERE   A   PARTY   SIGNS   AS    SURETY.  239 

We  should  say  that  any  material  variation  would  be  i)resumed 
to  be  prejudicial  to  the  surety  ;  (u)  although  it  is  shown  to  l)e  not 
injurious  to  him.(v)  It  has  been  held,  on  what  we  deem  strong 
reasons,  that,  if  a  note  be  sued  which  was  given  as  a  collateral 
security  for  the  performance  of  a  contract  by  another,  it  is  a  good 
defence  by  the  promisor  that  the  contract  has  been  materially 
varied  without  his  consent,  (tf;) 

If  the  creditor  gives  time  or  forbearance  to  the  principal  debtor 
by  a  promise  which  binds  him  in  law,  and  would  ])ar  his  action 
against  the  debtor,  the  surety  is  discharged.  For  in  tiic  first 
place  this  essentially  varies  the  terms  of  the  oljligation,  which 
ceases  to  be  that  for  the  due  discharge  of  wliich  he  l)ecame  surety. 
And  in  the  next  place  the  surety  holds,  as  a  valuable  right,  the 
power  of  instantly  saving  himself  by  suit  against  the  debtor,  if 
he  is  obliged  to  pay  the  debt.  If,  then,  time  be  given  to  the 
debtor,  and  the  surety  pays,  he  loses  this  right  because  he  does 
not  pay  from  legal  necessity.  The  debtor  may  say,  "I  was  not 
obliged  to  pay  my  creditor  for  three  months  to  come,  and  why 
should  I  pay  you  ?  "  And  thus  the  creditor  has  deprived  the 
surety  of  a  right  on  which  he  may  have  depended  for  his  indem- 
nity. (.«)  But  that  the  promise  may  have  this  effect,  the  fact  of 
suretyship  must  be  known  to  the  creditor  at  the  time  he  makes 


32  N.  H.  560;  Manuflicturers'  Bank  v.  Cole,  39  Maine,  188.  See  Bonar  v.  Macdonald, 
3  H.  L.  Cas.  226 ;  Boston  H.  M.  Co.  v.  Messinger,  2  Pick.  223 ;  Bethunc  v.  Dozier, 
10  Ga.  235. 

(u)  See  Loughborough,  Ld.  Ch.,  Roes  v.  Bcrrington,  2  Vcs.  Jr.  540 ;  Eastman,  J., 
Watriss  v.  Pierce,  supra;  Miller  v.  Stewart,  9  Wheat.  680. 

(v)  Miller  v.  Stewart,  supra.  See  also  McMicken  v.  Webb,  6  How.  292  ;  Mackay  v. 
Dodge,  5  Ala.  388  ;  IValiuorlh,  Cii.,  Miller  v.  McCun,  7  Paige,  451  ;  Nelson,  J.,  Gahn 
V.  Nicmcewicz,  11  Wend.  312  ;  Holmes  v.  Dole,  Clarke,  Ch.  71.  See  American  Bank 
V.  Baker,  4  Met.  164  ;  Bangs  v.  Strong,  10  Paige,  11,7  Hill,  250;  Comegys  v.  Booth, 

3  Stew.  14  ;  Mc Williams  v.  Miison,  6  Duer,  276.  But  see,  contra,  Hulme  v.  Coles,  2 
Sim.  12  ;  Price  v.  Edmunds,  10  B.  &  C.  578;  Bell  v.  Banks,  3  Scott,  N.  R.  497  ;  Bar- 
ker V.  M'Clure,  2  Blackf.  14. 

(w)  Brigham  y   Wentworth,  11  Cush.  123. 

(r)  Bangs  v.  Strong,  10  Paige,  11,  7  Hill,  250;  Bower  v.  Tiennann,  3  Denio, 
378  ;  Home  v.  Bodwell,  5  Gray,  457  ;  Davies  v.  Stainbank,  6  De  G.  M.  &  G.  679 ; 
Dunn  V.  Spalding,  43  Maine,  336  ;  Chute  j;.Pattee,37  Maine,  102  ;  King  v.  State  Bank, 

4  Eng.  185  ;  Waters  v.  Simpson,  2  Gilman,570.  See  Rces  v.  Bcrrington,  2  Ves.  Jr.  540; 
Orme  v.  Young,  Holt,  84  ;  Eyre  v.  Bartrop,  3  Mad.  221  ;  Lewis  v.  Jones,  4  B.  &  C. 
515,  note.  The  doctrine  was  first  ititroduced  in  courts  of  equity.  Gihbs,  C  J.,  Melvill 
V.  Glcndining,  7  Taunt.  126.  The  rule  is  the  same,  if  the  principal  was  insolvent  at 
the  time  of  the  promise.     Huffman  ii.  Hulbert,  13  Wend.  375. 


240  NOTES  AND   BILLS.  [CH.  VH. 

the  promise  ;  {y)  nor  will  such  knowledge  be  presumed  where  he 
takes  a  note  overdue ;  (z)  if  the  surety  assents  to  the  promise, 
he  will  not  be  discharged  ;  (a)  but  assent  of  one  surety  will  not 
bind  a  co-surety. (/>)  If  the  agreement  to  give  time  be  without 
consideration,  it  does  not  bind  the  creditor,  and  therefore  does 
not  discharge  the  surety. (c)  The  indulgence,  to  have  the  effect 
of  discharging  the  surety,  must  be  for  a  definite  time ;  (d)  but 
this  time  may  be  very  brief.(e)  If  the  consideration  for  the  in- 
dulgence be  usurious,  where  such  a  contract  is  void  by  law,  the 
agreement  does  not  discharge  the  surety  ;  (/)  and  this  has  been 
held  even  where  the  usury  was  paid,  and  the  contract  exe- 
cuted ;  (g-)  but  that  the  surety  is  discharged  in  this  case  seems 
to  be  the  better  rule,  and  to  rest  upon  better  authority. (/<)  Part 
payment  before  maturity  is  held  to  be  a  sufficient  consideration 
for  the  promise  of  indulgence,  which  promise  therefore  discharges 
the  surety. (i)     But  payment  after  maturity  is  not  regarded  as  a 

(//)  Elwood  V.  Deifendorf,  5  Barb.  398. 
(z)  Nichols  I'.  Parsons,  6  N.  H.  30. 

(a)  See  Gray  v.  Brown,  22  Ala.  262  ;  Suydam  v.  Vance,  2  McLean,  99  ;  Solomon 
V.  Gregory,  4  Harrison,  112. 

(b)  Crosl)y  1'.  Wyatt,  10  N.  H.  318.  In  this  case,  the  defendant,  in  an  action  for 
contribution  between  co-sureties,  claimed  his  discharge,  because  time  had  been  given  to 
tlie  principal.  The  note  was  given  to  a  bank,  which,  according  to  its  regular  usage, 
allowed  the  note  to  lie  over  after  it  became  due,  on  receipt  of  interest  in  advance  from 
the  principal.  Held,  that  this  was  presumptive  assent  of  the  surety  to  such  extension 
of  payment;  but  that  this  principle  cannot  apply  to  any  delay  beyond  such  regular 
usage.  So  where  the  note  laid  over  for  two  years,  under  such  circumstances,  and  the 
principal  had  become  insolvent.  Strafford  Bank  v.  Crosby  8  Grccnl.  191.  See  Crosby 
V.  Wyatt,  23  Maine,  1.56.  Where  a  note  stipulated  for  its  continuance  from  time  to 
time,  the  sureties  were  held,  although  not  consulted  in  making  such  continuance.  Red- 
dish V.  Watson,  6  Ohio,  .510. 

(c)  Reynolds  v.  Ward,  5  Wend.  .501  ;  Hogaboom  v.  Herrick,  4  Vt.  131  ;  Creatli  v. 
Sims,  5  How.  192;  Varnum  v.  Milford,  2  McLean,  74;  Newell  i-.  Ilamcr,  4  How. 
Miss.  684.  Sec  M' Lemorc  v.  Powell,  12  Wheat.  554;  Brinagar  v.  Phillips,  1  B. 
Mon.  283. 

(r/)  Board  of  Police,  &c.  v.  Covington,  26  Missis.  470.  See  Miller  v.  Stem,  2  Penn. 
State,  286,  12  id.  383  ;  Alcock  v.  Hill,  4  Leigh,  622;  Gardner  v.  Watson,  13  III.  347  ; 
Parnell  v.  Price,  3  Rich.  121. 

(e)  Fellows  v.  Prentiss,  3  Dcnio,  512. 

(/)  Vilas  V.  Jones,  1  Comst.  274  ;  McComb  v.  Kittridge,  14  Ohio,  348. 

(7)  Sec  ViiiLS  I'.  Jones,  supra. 

(//)  Kciiningham  v.  Bedford,  1  B.  Mon.  325  ;  Duncan  v.  Reed,  8  id.  382;  Walworth, 
Ch.,  Vilas  ;;  Jones,  10  Paige,  76  ;  Kyle  v.  Bostick,  10  Ala.  589  If  usurious  contracts 
are  not  void  at  law,  the  surety  is  discharged.  Harbert  i'.  Dumont,  3  Ind.  346;  Mc 
Comb  V.  Kittridge,  14  Ohio,  348. 

(1)  Whittle  V.  Skinner,  23  Vt.  231 ;  Grccly  v.  Dow,  2  Met.  176.     In  this  last  case 


I 


CH    VII.]  WIIHRE    A    PARTY    SIGNS   AS   SURETY.  24j 

sufificieiit  consideration. (/)  The  receipt  of  interest  in  advance, 
after  maturity,  has  liowever  been  held  to  be  a  sufficient  consider- 
ation ;  (A')  and  it  has  also  been  held  to  be  prima  facie  evidence  of 
a  valid  agreement. (/)  If  the  creditcn',  when  he  gives  time  to  the 
principal,  expressly  reserves  his  remedy  against  the  surety,  the 
surety  is  not  discharged. (w)  So  if  the  surety  iiolds  I'ull  indem- 
nity from  the  principal,  it  has  been  held  that  he  cannot  avail 
himself,  by  way  of  defence,  of  the  fact  tiiat  time  has  been  given 
to  the  principal. (w)  It  seems  to  be  otherwise,  however,  if  the 
indemnity  is  from  a  co-surety,  who  is  not  a  party  to  the  note.(o) 

Shaw,  C.  J.  stated  the  general  rule  thus  :  "  If  the  lioldcr  of  the  note  has  contracted  to 
enlarge  I'lie  time,  he  is  hound  by  it ;  whetlier  it  is  treated  as  a  colhitcral  undertaking 
upon  wiiich  the  legal  remedy  is  to  be  sought  at  law,  as  in  Dow  v.  Tuttle,  4  ISlass.  4N  ; 
or  whether  tlie  remedy  of  the  promisor  is  in  equity  for  a  specific  performance;  or 
whether  tlie  contract  for  an  enlargement  of  the  time  of  payment  contains  tlie  stijjulation 
that,  if  violated,  it  shall  enure  by  way  of  release  ;  it  makes  no  difference  to  the  surety. 
The  holder  of  tiie  note  has  a  perfect  right  to  enter  into  stipulations  with  the  promisor 
in  regard  to  the  time  and  the  mode  of  payment  Such  stipulation,  as  between  them, 
is  a  valid  and  biudnig  contract  for  furtiier  time,  bearing  directly  on  the  contract,  whieli 
he  had  no  right  to  say  he  did  not  intend  to  fulfil,  and  therefore  the  surety  may  avail 
himself  of  it  as  a  substantive  alteration  of  the  contract,  and  insist  on  his  discharge." 
See  Thomas  v.  Dow,  33  Maine,  390 

(j)  Mason  v.  Peters,  4  Vt.  101  ;  Wheeler  v  Washburn,  24  id.  293 ;  Pabodie  v.  King, 
12  Johns.  426      See  Jenkins  v.  Clarkson,  7  Ohio,  72. 

(k)  N.  H.  Savings  Bank  v.  Colcord,  15  N.  H.  119;  Chute  v.  Pattee,  37  Maine,  102 
See  Blake  v.  White,  I  Younge  &  C.  Exch.  420 ;  Dubuisson  v.  Folkes,  30  Missis.  432. 
Contra^  see  Harter  v  Moore,  5  Blackf  367  ;  Shook  v.  State,  6  Ind.  113  ;  Reynolds  v. 
Ward,  h  Wend.  501. 

(/)  Crosby  v.  Wyatt,  10  N.  H.  318  ;  N.  II.  Savings  Bank  v.  Ela,  11  N.  H.  .335  ;  Mer- 
rimack Co.  Bank  v.  Brown,  12  N.  H.  320,  Contra,  Oxford  Bank  v.  Lewis,  8  Pick.  458  ; 
Blackstone  Bank  v.  Hill,  10  Pick.  129  ;  Freeman's  Bank  ».  Rollins,  13  Maine,  202; 
Mariner's  Bank  v.  Abbott,  28  Maine,  280.  See  Harnsbarger  v.  Kinney,  13  Grat.  511 ; 
Crosby  V.  Wyatt,  23  Maine,  156.  An  agreement  to  receive  payment  in  yearly  instal- 
ments, on  a  note  payable  on  demand,  discharges  the  surety.  Gilford  v.  Allen,  3  Met. 
255.  Taking  the  check  of  the  principal,  payable  at  a  future  day,  discharges  the  surety 
on  a  bond.  Bangs  v.  Mosher,  23  Barb.  478.  For  analogous  eases,  see  Hulme  v. 
Coles,  2  Sim.  12;  Price  v.  Edmunds,  10  B.  &  C.  578;  Clippinger  v.  Creps,  2  Watts, 
245  ;  Okie  v.  Spencer,  2  Whart.  253 ;  Michigan  Bank  v.  Leavenworth,  28  Vt.  208  • 
Hart  V.  Hudson,  6  Duer,  294. 

(m)  Viele  v  Hoag,  24  Vt.  46;  Blackstone  Bank  v.  Hill,  10  Pick.  129.  See  Wyke 
V.  Rogers,  1  De  G.  M.  &  G.  408 ;  Ex  parte  Hafvey,  4  id.  881  ;  Nichols  v.  Norris,  3  B. 
&  Ad.  41  ;  Kearsley  v.  Cole,  16  M.  &  W.  128;  Owen  v.  Homan,  3  Mac.  &  G.  378, 
4  H.  L.  Cas.  997  ;  Ex  parte  Glendinning,  Buck,  5 1 7  ;  Ex  parte  Carstairs,  id.  560 ;  Wag- 
man  V.  Hoag,  14  Barb.  232;  Sohier  v.  Loring,  6  Cush.  537.  Contra  in  Louisiana. 
See  Gustine  v.  Union  Bank,  10  Rob.  La.  412. 

(n)  Chilton  v.  Robbins,  4  Ala.  223  ;  Smith  v.  Steele,  25  Vt.  427.  See  Bradford  V. 
Hubbard,  8  Pick.  155  ;  Moore  v.  Paine,  12  Wend.  123. 

(o)  Wilson  V.  Wheeler,.  29  Vt.  484. 

Voi.  I.-Q 


242  NOTES   AND   BILLS.  [CH.  VH. 

If  a  surety,  who  has  been  discliarged  by  giving  time  to  tlie  prin- 
cipal, afterwards,  with  knowledge  of  the  facts,  and  for  a  new  con- 
sideration, acknowledge  that  the  original  debt  is  due  from  him, 
and  agrees  to  be  liable  in  a  stipulation  for  further  delay,  he  is 
bound  by  this  agreement,  and  possibly  so,  even  if  he  were  igno- 
rant of  the  fact  of  his  discharge,  there  being  no  fraud  in  the 
transaction. (jo)  And  perhaps  he  may  renew  his  liability  by  a  new 
promise,  without  any  further  consideration,  on  the  ground  that 
his  right  to  be  discharged  is  a  personal  privilege,  which  he  may 
waive  if  he  chooses. (^)  A  surrender,  by  the  holder  of  a  note, 
of  collateral  security  received  from  the  principal,  will  discharge 
the  surety,  either  entirely,  or  pro  tanto,  if  made  without  the 
assent  of  the  surety.  For  if  the  surety  pays  the  note,  lie  is  en- 
titled to  the  benefit  of  such  security,  by  subrogation. (r)  So,  as 
a  general  rule,  any  fraudulent  or  deceitful  conduct  on  tlie  part 
of  the  creditor,  which  lulls  the  surety  into  a  groundless  confi- 
dence, and  prevents  him  from  obtaining  indemnity,  will  operate 
as  a  discharge. (s) 

ip)  N.  n.  Savings  Bank  v.  Colcoid,  15  N   H.  119. 

(7)  Parker,  C.  J.,  Fowler  v.  Brooks,  13  N.  H.  420.  Declarations  by  the  surety  to 
third  persons,  that  he  "  expected  to  pay  the  note,"  or  that  he  "  should  he  obliged  to 
pay  "  it,  or  "  might  have  to  pay  "  it,  do  not,  of  themselves,  operate  as  a  now  jiromise. 
The  fact  that  the  surety  takes  indemnity  from  the  principal  without  any  communication 
with  the  creditor,  is  not  a  renewal  of  tlie  promise.  Fowler  v.  Brooks,  supra.  See 
furtlicr,  Mayhew  v.  Crickett,  2  Swanst.  185. 

(?•)  Baker  r.  Briggs,  8  Pick.  122.  See  Law  v.  East  India  Co.,  4  Ves.  824;  Com- 
monwealth V.  Vandcrslice,  8  S.  &  R.  452;  Lichtcnthaler  v.  Thompson,  13  id.  157; 
Everly  v.  Rice,  20  Penn.  State,  297  ;  American  Bank  v.  Baker,  4  Met.  164  ;  Hayes  v. 
Ward,  4  Johns.  Ch.  123  ;  N.  H.  Savings  Bank  v.  Colcord,  15  N.  II.  119.  But  in  Crano 
r.  Stickles,  15  Vt.  252,  Hihhard,  J.  said:  "The  payee  of  the  note  may  give  up  such 
security  as  he  may  have  obtained  at  his  own  suggestion,  without  any  assistance  from 
the  surety,  provided  he  acts  in  good  faith,  and  only  with  reference  to  his  own  interest." 
Where  the  creditor,  after  judgment  on  the  note  against  both  principal  and  surety,  relin- 
quished the  property  of  the  jiriiicipal  seized  on  execution,  and  levied  on  property  of  the 
surety,  there  being  no  proof  of  damage  to  the  surety  by  the  reliiuiuishment;  it  was  held 
that  the  creditor  was  not  liable  to  the  surety  in  trespass  for  the  sale.  Fuller  v.  Loring, 
42  Maine,  481,  Tenney,  J.  dissenting.  Where  the  creditor,  after  judgment  against  tho 
principal  .alone,  abandoned  property  seized  on  execution,  it  was  held  that  evidence  of 
these  facts  was  admissible  to  discharge  the  surety  for  tlie  amount  so  abandoned. 
Springer  v.  Toothaker,  43  Maine,  381.  See  Edgerly  v.  Emerson,  3  Foster,  555.  In 
Maylicw  v.  Crickett,  2  Swanst.  185, 1  Wils.  Ch.  418,  Lord  ElJon  said  :  "  I  a!way;<  under- 
stood, that  if  a  creditor  takes  out  execution  against  the  principal  debtor,  and  waives  it, 
he  discharges  the  surety,  on  an  olivious  principle  which  prevails  both  in  court.*  of  Inw 
and  in  courts  of  equity." 

(a)  Baker  v.  Briggs,  8   Pick.   122;    Harris  v.  Brooks,  21   id.  195;  Clark  v    Hill, 


CH.  Vir.]  WHERE   A   PARTY   SIGNS   AS   SURETY.  243 

A  surety  who  pays  a  note  which  is  due  aud  demandablc  from 
the  principal  promisor,  although  lie  pays  it  witliout  suit,  or  com 
pulsion,  or  even  demand  from  the  holder,  has  an  immediate 
claim  upon  the  principal  debtor  for  indemnity. (^)  And  it  seems 
to  be  quite  immaterial  in  what  way  the  surety  extinguishes  the 
creditor's  claim. (z*)  If  the  joint  and  several  note  of  co-sureties 
is  accepted  by  the  creditor  as  payment  of  the  original  note,  they 
may  recover  of  the  principal  in  a  joint  action,  such  a  case  being 
an  exception  to  the  general  rule,  that  each  must  sue  for  the 
amount  paid  by  him.  Tiie  exception  is  placed  vipon  the  ground 
that  the  payment  was  a  joint  act,  creating  a  joint  interest.  (?;) 

As  to  the  costs  which  a  surety  may  recover,  it  seems  that  he 
may  recover  costs  of  his  principal,  after  a  suit  against  the  surety 
by  the  holder,(iy)  unless  his  defence  were  frivolous,  unnecessary, 
or  against  the  reasonable  and  honest  instructions  of  his  princi- 
pal, (x)     This  right  of  the  surety  to  indemnity,  springing  from 


cited  in  McColIum  v.  Hincliley,  9  Vt.  143,  147.  See  Mactaggart  r.  Watson,  3  Clark 
&  F.  525. 

[I)  Minis  V.  McDowell,  4  Ga.  182.  See  Odlin  v.  Greenleaf,  3  N.  H.  270;  Pitt  v. 
Pui-ssord,  8  M.  &  W.  538. 

[ti)  Hulett  V.  Soullard,  26  Vt.  295;  Bonney  v.  Seely,  2  Wend.  481.  He  may 
recover  on  a  count  for  money  had  and  received,  although  he  paid  in  notes,  if  they 
were  received  as  payment.  Willie  v.  Green,  2  N.  H.  333.  Or  on  a  count  for  money 
laid  out  and  expended.     Pearson  v.  Parker,  3  N.  H.  366.     See  Homraell  v.  Gamewell, 

5  Blaekf  5.  Where  the  administrator  of  the  principal  had  successfully  defended  a  suit 
on  the  note  against  him,  and  the  holder  afterwards  obtained  a  judgment  by  default 
against  the  surety  in  the  same  court;  it  not  appearing  that  cither  party  knew  of  the 
other  suit,  or  that  the  surety  was  privy  to  the  administrator's  defence  ;  it  was  held,  that 
the  surety  was  not  precluded  from  his  right  to  indemnity  from  the  estate  of  the  prin- 
cipal. Stinson  v.  Brennan,  Cheves,  15.  Where  the  administratrix  of  a  surety,  having 
been  sued  by  the  holder  of  the  note  while  it  was  still  valid  against  the  principal,  but 
after  the  claim  against  the  surety's  estate  was  barred  by  the  statute  of  limitations,  paid 
the  claim  under  an  award  ;  it  was  held  that  she  could  maintain  a  claim  for  indemnity. 
Shaw  V.  Loud,  12  Mass.  447.  Where  the  surety,  after  the  discharge  in  insolvency  of 
the  principal,  being  then  first  called  on,  paid  the  note  and  sued  the  prin- 
cipal, he  was  allowed  to  recover.     Powell  v.  Eason,  1  Moore  &  S.  68. 

[v)  Stewart  v.  Vaughan,  Rice,  33.  Sec  Pearson  v.  Parker,  3  X.  H.  366  ;  Appleton 
r.  Bascom,  3  Met.  169. 

(w)  See  Cleveland  v.  Covington,  3  Strob.  184;  Rice  v.  Rice,  14  B.  Mon.  417; 
Riddle  v.  Bowman,  7  Foster,  236. 

(,r)  Beckley  v.  Munson,  22  Conn.  299  ;  Cleveland  v.  Covington,  supra.  See  Roach 
1.  Thompson,  4  Car.  &  P.  194.  The  surety  may  recover  costs  incurred  in  an  action 
tgainst  the  principal  and  surety  jointly.  Apgar  v.  Hiler,  4  N.  J.  812.  It  seems 
that  he  may  recover  interest  on  the  amount  paid.     See  Petre  v.  Duncombe,  1  Eng.  L. 

6  Eq.  320;  Ilsley  v.  Jewett,  2  Met.  168.    But,  in  general,  he  can  recover  only  the 


244  NOTES   AND   BILLS.  [CH.  VH. 

the  equitable  obligation  of  the  principal  to  repay  the  surety,  ex- 
ists wherever  the  principal's  assent  to  the  suretyship  may  be  rea- 
sonably inferred,  or  presumed,  and  only  there  ;  [y)  and  then  it 
relates  back  to  the  time  of  the  original  contract  of  suretyship,  as 
against  all  subsequent  equities,  (z) 

A  surety  has,  however,  no  claim  against  the  principal  upon 
which  lie  can  bring  an  action,  until  the  note  on  which  he  is 
surety  is  due.  His  contingent  liability  may,  however,  be  a  suf- 
ficient consideration  for  a  promissory  note  from  the  principal, 
upon  which  he  may  commence  a  suit,  even  before  the  original 
note  is  due. (a)  As  a  general  rule,  whatever  discharges  the  prin- 
cipal discharges  the  surety. (6)  But  wliere  one  had  signed  a  joint 
and  several  note  with  a  married  woman,  as  surety,  it  was  held 
that  her  successful  plea  of  coverture  was  no  defence  to  the 
surety. (c)  Nor  will  this  rule  apply  to  the  many  cases  in  which 
a  surety  is  required,  for  the  very  reason  that  the  principal  may 
have  a  defence  which  will  defeat  the  claim  against  him.  As  in 
the  instance  just  mentioned,  where  a  wife's  note  is  strengthened 
by  a  surety,  so  an  infant's  note  may  have  a  surety  who  will  be 
held,  although  the  infant  make  successfully  the  defence  of  in- 
fancy. (6?)  And  we  should  say  that,  if  a  corporation  made  a  note 
which  they  had  no  legal  power  to  make,  sureties  on  that  note 
would  be  held.  And  this  might  be  true,  even  if  the  corporation 
were  proliibited  by  their  charter,  or  by  some  general  statute,  from 
issuing  sucli  a  note.  If,  however,  the  issuing  of  the  note  were 
not  only  prohibited,  but  made  a  legal  offence,  with  a  penalty 


amount  paid.  Bonncy  i;.  Seely,  2  Wend.  481.  Where  one  of  the  principals  died, 
it  was  held  that  the  surety  could  recover  the  amount  paid  of  the  survivor,  deducting 
the  proceeds  of  whatever  collateral  security  he  might  have  received.  Riddle  v.  Bow- 
man, 7  Foster,  236. 

(y)  Powers  v.  Nash,  37  Maine,  322  ;  Norton  v.  Coons,  3  Denio,  130. 

(z)  Barney  v  Grovcr,  28  Vt.  391.  Sec  Howe  v.  Ward,  4  Grecnl.  195  ;  Thompson 
V.  Thompson,  19  Maine,  244;  Carlisle  v.  Rich,  8  N.  H.  44;  Choteau  v.  Jones, 
11  111.  300. 

(a)  See  Swift  v.  Crocker,  21  Pick.  241  ;  Dcdman  v.  Willi.ams,  1  Scam.  154.  It 
has  been  said  that  a  surety  may  have  relief  in  e<iuity  as  soon  as  he  is  endangered. 
Taylor  v.  Hcriot,  4  Desaus.  227;  McKenna  v.  George,  2  Rich  Eq.  15. 

(A)  1  Parsons  on  Cont.  494  ;  Theobald  on  Principal  and  Surety,  3.  See  Lewis  v. 
Jones,  4  R.  &  C.  506,  515,  note  a. 

(r)  Sinyhy  i'.  Head,  2  Rich.  590.  See  also  Maggs  v.  Ames,  4  Ring.  470,  and  Con- 
nerat  v.  Goldsmitii,  6  Ga.  14. 

(d)  Conn  T.  Coburn,  7  N.  H.  368.     See  Kimball  v.  Newell,  7  Hill,  116 


CH.  VII.]  WHERE   A   PARTY   SIGNS   AS   SURETY.  245 

attached,  the  wliole  paper,  with  all  its  names,  might  then  be 
deemed  void.  The  mere  fact  that  the  surety  cannot,  in  any  such 
case,  if  he  i)ays  the  note,  have  an  enforceable  claim  for  what  he 
pays  against  the  principal,  defeats  the  holder's  claim  against  the 
surety. 

Payment  of  the  whole  amount  will  of  course  discharge  the 
surety  ;  but  payment  of  a  part,  whether  by  principal  or  by  surety, 
will  not  discharge  the  surety.  For  the  surety  is  bound  equally 
with  the  principal  for  the  payment  of  the  whole  ;  and  as  payment 
of  a  part  will  not  discharge  the  principal,  so  it  will  not  discharge 
the  surety. (e)  Nor  will  an  offer  of  time  which  is  not  accepted. (/) 
Nor  will  the  taking  of  a  collateral  security  by  the  creditor  from 
the  principal  debtor ;  for  this  can  only  help  the  surety,  who  is 
entitled,  on  his  payment,  to  the  benefit  of  all  such  security. («•) 


(e)  See  Fitch  v.  Sutton,  5  East,  230  ;  Beaumont  v.  Grcathead,  2  C.  B.  494  ;  Cotton 
r.  Godwin,  7  M.  &  W.  147  ;  Hesketli  v.  Fawcett,  11  id.  356  ;  Shaw,  C.  J.,  Lincoln  v. 
Bassett,  23  Pick.  1.54;  Smith  v.  Bartholomew,  1  Met.  276  ;  "Wheeler  ».  "Wheeler,  11 
Vt.  60  ;  Bailey  v.  Day,  26  Maine,  88 ;  McAllester  v.  Sprague,  34  id.  296.  Payment 
of  a  part,  by  a  third  party,  discharges  the  debtor.  Welby  v.  Drake,  1  Car.  &  P.  557  ; 
Brooks  V.  White,  2  Met.  283.  If  the  holder  has  commenced  a  suit  against  the  prin- 
cipal, and  the  surety  tenders  the  amount  due,  he  must  also  tender  indemnity  against 
costs.  Hampshire  Bank  v.  Billings,  17  Pick.  87.  Part  payment  before  the  debt  is  due 
is  a  good  consideration.  Wells,  J.,  Lee  t'.  Oppenheimer,  32  Maine,  253 ;  Brooks  v. 
White,  2  Met.  283. 

(/)  Sec  Hewet  v.  Goodrick,  2  Car.  &  P.  468 ;  Badnall  v.  Samuel,  3  Price,  521  ; 
supra,  p.  239,  note  x. 

(g)  Twopenny  i'.  Young,  3  B.  &  C.  208.  See  Burke  v.  Cruger,  8  Texas,  66,  1 1  id. 
694  ;  "Q.  S.  v.  Hodge,  6  How.  279  ;  Stevenson  v.  Austin,  3  Met.  474  ;  Norton  v.  Soule, 
2  Greenl.  341 ;  Wade  v.  Staunton,  5  How.  Miss.  631  ;  Pring  v.  Clarkson,  1  B.  &  C. 
14.  Where  a  party  holds  two  notes  against  another,  one  of  which  is  signed  by  a  surety, 
recovery  of  the  full  amount  of  the  other  note  will  not  affect  his  claim  on  the  surety. 
Dalton  V.  Woburn,  24  Pick.  257.  In  this  last  case  it  was  held,  that  if  the  creditor  re- 
covers judgment  on  several  notes,  and  the  surety  on  one  pays  the  note  in  full,  and  after- 
wards the  creditor  receives  from  the  principal  the  whole  amount  of  the  judgment  on  all 
the  notes,  the  surety  cannot  recover  back  any  portion  of  the  money  paid  by  him.  In 
Lincoln  v.  Bassett,  23  Pick.  154,  the  principal  made  an  assignment  to  the  creditor,  for 
the  benefit  of  all  his  creditors.  The  creditor  received  a  dividend  during  the  pendency 
of  a  suit  by  him  against  a  surety.  It  was  held  that  the  suit  was  not  barred  by  the  re- 
ceipt of  the  dividend,  but  that  the  dividend  was  to  be  deducted  in  estimating  the  dam- 
ages. Shaw,  C.J.  said:  "The  giving  of  an  assignment  or  other  collateral  security 
by  the  principal  is  no  bar  to  an  action  against  the  surety,  unless  there  be  some  stipu- 
lation to  that  effect  on  the  part  of  the  creditor.  Years  may  elapse  after  such  an  as- 
signment before  any  money  will  be  realized  from  the  assigned  property  ;  in  the  mean 
time  the  obligation  is  to  pay  money  immediatel}'.  Were  the  surety  thus  to  pay,  it 
might  well  be  held  in  equity  that  the  creditor  should  stand  as  trustee  for  him  for  the 
assigned  property.  The  most  favorable  view  to  be  taken  for  the  defendant  is,  that,  the 
21* 


246  NOTES   AND   BILLS.  [CH.  VII. 

But  one  surety,  on  payment  of  the  debt,  cannot  claim  the  bene- 
fit of  security  given  by  a  co-surety.  (A)  And  if  a  note  be  given 
for  the  old  one,  even  this  may  be  deemed,  if  so  intended,  only  as 
collateral  security,  (z) 

If  a  surety  pays  money  to  the  creditor  under  a  mistake  of 
facts,  supposing  them  such  as  would  make  him  liable,  when  in 
truth  they  are  not,  he  may  recover  the  money  back  from  the 
creditor. (7)  But  if  he  had  knowledge  of  the  facts,  and  his  mis- 
take is  one  of  law,  he  has  no  such  right,  (/i:)  The  declaration  of 
a  surety  on  a  joint  note,  the  principal  being  insolvent,  that  he 
intended  to  pay  the  amount,  and  wished  to  know  how  much 
interest  was  due,  in  reply  to  a  proposal  by  the  holder  that  he 
should  sign  a  new  joint  and  several  note  for  the  amount,  does  not 
change  the  liability  of  tlie  surety  from  joint  to  several,  either  at 
law  or  in  equity.(/)  It  has  been  held  that  a  judgment  against 
principal  and  surety  merges  the  relations  of  the  parties,  so  that 
a  defence  growing  out  of  the  relations  existing  before  the  judg- 
ment is  not  available  at  law  afterwards. (m)  But  such  a  defence 
is  admitted  in  equity.(Ai)  It  has  however  been  said,  that  what- 
ever would  be  a  defence  to  the  surety  in  equity,  is  a  defence  in 
law.(o)  A  surety,  whether  this  word  be  attached  to  his  name  or 
not,  is  bound  to  any  holder  in  like  manner  as  a  principal  prom- 
isor is  lield.  Thus,  if  a  note  be  signed  A  and  B,  and  against 
B's  name  is  the  word  surety^  B  may  be  sued  jointly  with  A,  or 
alone  if  the  note  be  joint  and  several,  in  the  same  way  as  if  the 
word  surety  was  not  there. 


creditor  being  himself  the  assignee,  when  the  assigned  property  is  reduced  to  money, 
it  operates  by  way  of  payment  pro  tanto." 

(/i)  Bowditcii  V.  Green,  3  Met.  360. 

(i)  See  Caiifield  v.  Ives,  18  Pick.  2.53. 

ij)  Garland  v  Salem  Bank,  9  Mass.  408. 

{k)  Bean  v.  Jones,  8  N.  II.  149  ;  Stevens  v.  Lynch,  12  East,  38. 

(/)  Jones  V.  Beach,  2  DeG.  M.  &  G.  88G. 

(w)  Marshall  v.  Aiken,  25  Vt.  328  ;  Ilerrick  v.  Orange  Co.  Bank,  27  id.  584.  Contra, 
Carpenter  v.  King,  9  Met.  511  ;  Gibson,  C.  J.,  Commonwealth  v.  Vandci-slicc,  8  S. 
&  K.  452  ;  Hicc  v.  Morton,  19  Misso.  263. 

()i)  See  Storms  v.  Tiiorn,  3  Barb.  314  ;  Curan  v.  Colbert,  3  Ga.  239. 

(o)  Miuinor's  Bank  v.  Abbott,  23  Maine,  280  ;  Springer  r.  Toothaker,  43  id.  381 ; 
Varniirn  >•.  iMilford,  2  McLean,  74.  Sec  Uees  v.  Bcrrington,  2  Ves.  Jr.  540;  Sam- 
uel! V.  Ilowarth,  3  Meriv.  272;  People  ».  Jansen,  7  Joiiiis.  332;  Baker  v.  Brigg-^.  • 
Pick.  122. 


CH.  VII. ]  JOINT   MAKERS,   ETC.  247 

SECTION    III. 

OF  JOINT   MAKERS,   AND   OF  JOINT   AND   SEVERAL   MAKERS. 

Two  or  more  persons  may  sign  a  note  jointly,  as  all  copart- 
ners do,  and  if  it  begin  "  We  promise,"  all  who  sign  it  are  con- 
sidered as  signing  it  only  jointly. (p)  It  is  then  a  joint  note,  and 
can  1)6  sued  only  against  all ;  and  they  are  in  general  joint 
debtors,  and  come  under  the  common  rule  of  law  in  relation  to 
joint  debtors.  And  it  has  been  held  that  the  note  is  joint,  al- 
though one  of  the  makers  signs  as  principal,  and  the  other  as 
surety. (^)  The  most  important  of  these  rules  of  law  which 
relate  to  joint  debtors  arises  from  the  necessity  of  suing  all.(>') 
Hence,  if  the  plaintiff  has  released  one  of  the  joint  debtors,  he 
can  maintain  no  action  against  the  other.(s)     And  the  reason 

{p)  Mayor  i;.  Ripley,  5  La.  120.  See  Palmer  v.  Stephens,  1  Denio,  471  ;  Yorks  v. 
Peck,  U  Barl).  644;  Shep.  Touch.  375. 

(7)  Hunt  V.  Adams,  5  Mass.  3.5S,  6  id  .519,  7  id.  518;  Palmer  ».  Grant,  4  Conn. 
389  ;  Eawstone  ».  Parr,  3  Kuss.  539,  reversing  same  case,  id.  424.  A  note  beginning 
'•  I  ])romise,"  signed  by  one  partner  for  his  co-partners,  as  "  A,  for  A,  B,  &  C,"  is  the 
joint  note  of  the  firm,  not  the  several  note  of  A,  the  partner  who  signed.  Ex  parte 
Buckley,  14  M.  &  \V.  469,  overruling  Hall  v.  Smith,  1  B.  &  C.  407  ;  In  the  matter 
of  Olai-ke,  1  De  Gex,  153;  Galway  v.  Matthew,  1  Camp.  403;  Doty  v.  Bates,  11 
Johns.  544.     See  supi-a. 

(r)  Mayor  v.  Ripley,  5  La.  120  ;  Bright  v.  Hand,  1  Harrison,  273.  See  Robertson  v. 
Smith,  18  Johns.  459.  In  Bovill  v.  Wood,  2  Maule  &  S.  23,  the  plaintiff  omitted  to 
join  one  of  the  promisors  who  had  obtained  his  discharge  in  insolvency.  Lord  Ellen- 
borough  said  :  "  The  defendants  have  a  right  to  require  that  their  co-debtor  should  be 
joined  with  them,  and  the  plaintiffs  cannot  so  shape  their  case  as  to  strip  them  of  that 
right,  or  of  the  benefit,  whatever  that  may  be,  of  having  his  discharge  stated  on  the 
record.  The  plaintitts  are  not  at  liberty  to  antici]Kite  in  the  first  instance  what  may  ulti- 
mately, perhaps,  be  a  discharge.  The  practice  has  ever  been  to  join  all  the  contracting 
parties  to  the  record  ;  and  there  is  this  advantage  attending  the  practice,  that  it  gives 
the  party  who  is  joined  notice  at  the  time,  and  also  enables  him  at  any  future  time  to 
plead  judgment  recovered  on  the  joint  debt,  without  the  help  of  any  averment ;  and  it 
likewise  advances  the  other  defendants  one  step  in  the  proof  necessary  in  an  action  by 
them  for  contribution."    See  Hawkins  v.  Ramsbottom,  6  Taunt.  179. 

(.s)  Tuckerman  v.  Newhall,  17  Mass.  581.  In  this  case  the  plaintiffs  covennntcd  with 
one  promisor  that  they  "  will  forever  release,"  &c.,  it  was  held  that  this  must  ojierate  as 
a  present  release,  and  the  co-promisor  was  discharged.  See  also  Brooks  v.  Stuart,  9 
A.  &  E  854,  1  Per.  &  D.  615  ;  Cheetham  v.  Ward,  1  B.  &  P.  630  ;  Myrick  v  Dame,  9 
Gush.  248  ;  Wiggin  v.  Tudor,  23  Pick.  434  ;  Kirby  v.  Taylor,  6  Johns.  Ch.  242  ;  De 
Zcng  V.  Bailey,  9  Wend.  336  ;  Taylor  v.  Gallaud,  3  Iowa,  17  ;  Yates  v.  Donaldson,  5 
Md  389  ;  Bozcman  v.  State  Bank,  2  Eng.  328  ;  U.  S.  v.  Thompson,  Gilpin,  614. 
The  rule  is  the  same  at  equity  as  in  law.     Willings  v.  Consequa,  Pet.  C.  C.  301. 


'IAS  NOTES   AND    BILLS.  [CH.  VH. 

of  this  rule  is  said  to  be,  that  the  release  is  an  admission  that 
the  debt  is  paid.(^)  According  to  the  weight  of  authority,  only 
a  technical  release  under  seal  will  have  this  effect,  a  parol 
release  being  insufficient,  (w)  We  should  say,  however,  that  a 
parol  release  made  on  good  and  sufficient  consideration  should 
have  an  equal  effect.  In  the  cases  which  deny  to  a  parol  release 
this  efficiency,  there  is  seldom  any  valid  consideration.  The 
reasons  for  the  distinctions  taken  on  this  subject  are  not  always 
quite  satisfactory. (y) 


(0  S/iaw,  C.  J.,  Pond  v.  Williams,  1  Gray,  630;  Savage,  C.  J.,  Catskill  Bank  v. 
Messenger,  9  Cowen,  37  ;  see  McAlIester  ».  Sprague,  34  Maine,  296  ;  Crane  v.  Ailing, 
3  Green,  N.  J  423  ;  Brown  v.  Marsh,  7  Vt.  320. 

(u)  Pond  r.  AVilliams,  1  Gray,  630;  Shaw  v.  Pratt,  22  Pick.  305;  Frink  v.  Green,  5 
Barh.  455;  Rowley  i'.  Stoddard,  7  Johns.  207  ;  Pinney  v.  Bugbee,  13  Vt.  623 ;  Harvey 
V.  Sweasy,  4  Humph   449. 

(r)  In  Tryon  r.  Hart,  2  Conn.  120,  the  defendants  pleaded  a  release  to  one  of  them 
not  under  seal.  The  plea  was  held  bad  on  other  grounds,  but  the  distinction  between 
one  under  seal  and  one  without  docs  not  appear  to  have  been  noticed.  See  Camp- 
bell V.  Brown,  20  Ga.  415.  In  Benjamin  v.  McConnell,  4  Gilman,  536,  it  was  held 
that  a  release  not  under'seal,  but  entered  of  record  and  made  part  of  a  decree  in  chan- 
cery, was  sufficient.  Purple,  J.  said :  "  But  it  is  objected  that  this  release  or  contract  is 
not  under  seal,  and  therefore  is  ineffectual  to  bar  the  action  as  against  Benjamin.  Onr 
answer  to  this  is  found  in  the  authorities  above  quoted ;  that  '  if  it  is  a  release  as  to 
one,  it  is  e((ually  so  as  to  all.'  Another  is,  that  it  is  evidenced  by  an  act  which,  in  legal 
contemplation,  is  of  higher  authority  than  any  instrument  under  seal,  a  decree  of  a 
court  of  record,  the  validity  of  which  cannot  be  assailed,  nor  its  verity  questi(med. 
And  thirdly,  where  a  consideration  is  expressed  in  a  release,  or  otherwise  proved  to 
have  passed  between  the  parties,  it  is,  in  the  opinion  of  the  court,  totally  immaterial 
whether  the  instrument  is  sealed  or  otherwise.  A  seal  but  imports  or  furnishes  evi- 
dence of  consideration  ;  and,  except  in  cases  where  the  release  is  designed  to  effect  a 
conveyance  or  transfer  of  real  estate,  or  some  interest  in  or  concerning  it  which  can 
only  pass  by  deed,  may,  without  infringing  any  rule  of  law,  be  dispensed  with."  In 
Nicholson  v.  Uevill,  4  A.  &  E.  675,  6  Nev.  &  M.  192,  it  was  hrld  that  the  discharge  of 
one  of  two  joint  and  several  makers,  by  an  agreemetit  to  that  effect  for  a  consideration, 
and  by  erasing  bis  name  from  the  note,  discharged  the  other  also.  Lord  Deiiinan,  C.J. 
said :  "  But  we  do  not  proceed  on  some  of  the  grounds  mentioned  at  the  bar,  such  as 
the  effect  of  the  plaintiff's  alteration  of  the  instrument  as  making  it  void,  or  that  the 
defendant  thereby  lost  his  right  to  contribution  from  the  joint  makers  of  the  note  ;  nor 
on  any  doctrine  as  to  the  relation  of  principal  and  surety.  We  give  our  judgment 
merely  on  the  principle  laid  down  by  Lord  (^hief  Justice  Ki/rr,  in  Cbcetham  v.  Ward, 
1  B.  &  P.  630,  as  sanctioned  by  unquestionable  authority,  that  the  debtee's  discbarge  of 
one  joint  and  several  debtor  is  a  discharge  of  all.  For  we  tliink  it  clear  that  the  new 
agreement  made  by  the  iduintitf  with  Heviil,  to  receive  from  him  £  100  in  full  jyaymcnt 
of  one  of  the  three  notes,  and  in  part  payment  of  the  otlier  1  wo  before  they  became  due, 
accompanied  with  tlic  erasure  of  his  name  from  these  two  t\otes,  and  followed  l)y  tho 
actual  receipt  of  the  £  100,  was,  in  law,  a  discharge  of  Uevill."  Independently  of  tho 
stress  laid  upon  the  erasure  of  the  name,  this  ca,se  is  an  authority  for  the  snfh^icncy  of 


CH.  VII.]  JOINT   MAKERS,    ETC.  249 

A  judgment  against  one  joint  i)roniisor  is  a  bar  to  an  action 
against  both.(t(;)  But  a  discluirgo  in  insolvency  of  one  joint 
maker  has  been  held  to  be  no  defence  to  the  other.(a;)  And 
it  may  be  stated  as  a  settled  principle,  that  a  discharge  of 
one  joint  promisor  by  operation  of  law,  without  the  co-operation 
or  assent  of  tiie  creditor,  will  not  discharge  both.(7/)  And  it 
is  now  quite  well  established,  at  least  as  a  general  rule,  that 
a  debtor  may  release  one  of  two  joint  debtors,  and,  by  an  ex- 
press reservation  of  his  rights  against  the  other,  preserve  them. 
And  if  an  action  be  brought  against  both,  and  this  release  to  one 
be  pleaded,  a  replication  that  this  action  is  brought  against  both 
only  to  recover  of  the  other  has  been  held  good.(s) 

Although  the  word  release  is  used,  and  a  seal  affixed,  if  the 
whole  instrument  is  capable  of  a  construction  which  would  make 
it  only  an  engagement  not  to  charge  that  party,  and  the  nature 
of  that  contract  or  any  admissible  evidence  leads  to  this  construc- 
tion, it  will  be  so  construed,  because  this  saves  the  action. (a)  For 
as  a  plaintiff  may  agree  not  to  demand  the  money  of  one  of 
two  joint  debtors,  but  reserve  the  right  of  action  ;  so,  if  he  only 
agrees  not  to  demand  the  money,  he  will  be  held  as  intending 


a  parol  release  In  Milliken  v.  Brown,  1  Rawle,  391,  it  was  held  that  a  parol  release 
of  one  debtor  from  a  judj^ment  against  three,  discliarged  all.     JW,  J.  dissenting. 

(w)  Ward  v.  Johnson,  1.3  Mass.  148  ;  Robertson  v.  Smith,  18  Johns.  459  ;  King  v. 
Hoare,  13  M.  &  W.  494.  The  contrary  was  held  in  Sheehy  ».  Mandcville,  6  Cranch, 
253,  but  this  case  appears  to  have  been  governed  by  a  local  practice  in  Virginia.  See 
Tucker,  J.,  Moss  v.  Moss,  4  Hen.  &  M  303.  In  Massachusetts  an  action  is  now  al- 
lowed in  such  a  case  I)y  statute  against  such  of  the  joint  contractors  as  were  not  served 
with  process  in  the  first  suit.     Gen.  Stats.  Mass.,  c.  126,  §  15. 

(.r)  Tooker  v.  Bennett,  3  Gaines,  4.  Tiiis  is  so  declared  by  statute  in  Massachusetts 
(Stat.  1838,  c.  163,  §  7) ;  Garnegie  v.  Morrison,  2  Met.  381 ;  and  in  England,  3  &  4 
Wm.  IV.,  c.  42,  §  9 

[ij]  Ilartness  v.  Thompson.  5  Johns.  160;  Robertson  v.  Smith,  18  Johns. 459;  Dmi- 
son,  J.,  Nokc  V.  Ingham,  1  Wilson,  89  ;  1  Wms.  Saund.  207  a,  note  ;  Wilde,  J.,  Ward 
I'.  Johnson,  13  Mass.  148.  Sec  Tuttle  v.  Gooper,  10  Pick.  281.  In  Cocks  v.  Nash,  4 
Moore  &  S  162,  a  joint  and  several  note  of  two  had  been  given  as  security  for  the 
separate  debts  of  the  promisors,  one  of  whom  the  plaintiff  had  released.  The  creditor 
declared  on  the  note,  and  also  on  an  account  stated.  A  verdict  was  directed  for  the 
defendant  in  the  count  on  the  note,  and  for  the  plaintiff  in  the  count  on  the  account 
stated,  for  the  amount  of  the  separate  debt  of  the  defendant. 

(z)  Twopenny  v  Young,  3  B.  &  G.  211,  5  D.  &  R.  261  ;  Lancaster  v.  Harrison,  4 
Moore  &  P.  561,  6  Bing.  726  ;  Solly  v.  Forbes,  2  Brod.  &  B.  38  ;  North  v.  Wakefield, 
13  Q.  B.  536. 

(a)  Solly  75.  Forbes,  2  Brod.  &  B.  38 ;  Gouch  r.  Mills,  21  Wend.  424.  See  Dean  v. 
Newnall,  8  T.  R.  168. 


250  NOTES   AND   BILLS.  [CH.  VIL 

to  reuerve  this  right  of  action.  And  it  is  said  to  be  immaterial 
whether  this  agreement  not  to  sue  is  for  a  limited  time,  or  never 
to  sue. (6)  A  covenant  under  seal  not  to  sue  a  party  is  not  a 
release,  but  is  construed  so  as  to  tlie  covenantee  to  save  circuity 
of  action,  because  if  judgment  were  rendered  against  him  in  the 
suit,  and  he  satisfied  it,  he  would  liave  his  action  on  the  cove- 
nant, (c)  The  mere  taking  of  security  from  one  joint  debtor, 
without  otherwise  giving  up  any  rights  against  him,  does  not  dis- 
charge the  others. (6?)  Part  payment  by  one  joint  debtor  does  not 
discharge  all,  if  the  holder  does  not  extinguish  tbc  contract. (e) 
But  it  is  not  so  construed  as  to  the  other  joint  debtor,  who  may 
still  be  sued  in  an  action  brought  against  both.(/) 

The  reason  of  the  rule  that  a  discharge  of  one  is  a  discharge  of 
all,  is  not  merely  technical.  One  of  two  who  owe  a  sum  jointly 
owes  in  fact  but  half  of  it,  because,  if  he  is  made  to  pay  the  whole 
of  it,  he  may  recover  half  from  the  other  by  way  of  contribu- 
tion ;  (g-)  but  the  right  of  contribution  exists  only  where  one  pays 
more  than  his  share  of  a  sum  which  others  were  bound  and  com- 
pellable to  pay  with  him,  and  it  is  therefore  lost  when  the  obliga- 
tion is  taken  away  from  the  others.  The  subject  of  contribution 
is  considered  hereafter.  (A) 

At  common  law  the  death  of  one  of  two  or  more  joint  debtors 
destroyed  his  obligation,  so  that  the  creditor  could  not  proceed 
against  the  representatives  of  the  deceased.  And  if  he  recovered 
the  whole  from  the  surviving  debtor,  or  from  tiic  representatives 
of  the  survivor,  as  he  might,  this  debtor  or  his  representatives 

(b)  See  Piiincy  v.  Bugbee,  13  Vt-  623.  The  agreement  may  be  by  parol,  as  in 
Pinncy  i'.  Bugbee,  s///>ra ;  Harrison  v.  Close,  2  Jobns.  448  ;  or  by  deed,  as  in  DurcU 
V.  Wendell,  8  N.  H.  369;  Kirby  v.  Taylor,  6  Johns.  Ch.  242  •  Shotwell  v.  Miller, 
Coxe,  81  ;  Walmosley  v.  Cooper,  11  A.  &  E.  216. 

(c)  Dnrell  v.  Wendell,  8  N.  H.  369;  Garnett  v.  Macon,  2  Brock.  185;  AValmcsley 
V.  Cooper,  11  A.  i&  E.  216. 

{(l)  Bedford  v.  Deakin,  2  B.  &  Aid.  210;  Perfect  v.  Musgrave,  6  Price,  111.  See 
also  antp,  ]>   13."),  note  (j. 

(e)  Buggies  v.  Patten,  8  Mass.  480.  See  Ilartness  v.  Thompson,  .5  .Johns.  160,  whcro 
to  a  suit  on  a  joint  and  several  note  one  of  the  defendants  pleaded  infiincy.  A  verdict 
rendered  in  his  favor  and  against  the  others  was  sustained. 

(/)  Ilutton  V.  Eyre,  6  Taunt.  289;  Garnett  v.  Macon,  2  Brock.  IS.'j ;  Durell  v. 
Wend.ll,  8  N.  FI.  369. 

((/)  Bi.ardinan  i'.  Paige,  1 1  N  11.  431  ;  Owens  v.  Collinson,  3  Gill  &  J.  25  ;  BurncU 
r.  Minot,  4  ,J.  H.  Moore,  340  ;  Prior  v.  llcmbrow,  8  M.  &  W.  873.  See  Il-nris  r. 
Brooks.  21  Pick.  195. 

(It)  Infra,  c.  26,  §  7. 


CH.  VII.]  JOINT   MAKERS,   ETC.  251 

could  not  claim  any  contrib\ition  from  the  representatives  of 
the  debtor  dying  first.  This  rule  has  been  changed  by  statute 
in  nearly,  if  not  quite,  all  our  States.  The  debt  falls  upon  the 
representatives.  They  cannot  be  made  joint  defendants  with  the 
surviving  debtor,  or  with  his  representatives ;  but  actions  may  be 
brought  against  both,  and  if  either  pays  more  than  his  or  their 
due  share,  contribution  may  be  demanded  from  the  other.  In 
some  States  the  common  law  has  been  changed  still  further  by 
statute,  and  joint  contracts  are  made  several  as  ^^l(j^(Koint.(^) 
A  note  may  be  both  joint  and  severaL^|^^&;  'so  if  the 
words  are,  "  We  jointly  and  severally  prona^^^Bl^or  if  other 
words  are  used  which  indicate,  and  perh^s  iyroey  permit,  such 
a  construction. (7)  Thus,  if  the  words  are,  "I  promise  to  pay," 
and  there  are  many  promisors,  it  is  the  several  promise  of  each, 
and  the  joint  promise  of  all. (A;)  If  the  note  were  expressly 
written,  "  We  severally  and  not  jointly  promise,"  <fec.,  it  would 
probably  be  held  as  several  only  ;  but  we  have  never  known 
such  a  case.(/)  If  a  note  be  joint  and  several,  it  is  in  fact  one 
more  than  as  many  notes  as  the  number  of  the  signers,  being  the 
note  of  each  one  of  them,  and  also  the  joint  note  of  all.(m)  And 
as  many  distinct  actions  may  perhaps  be  brought  upon  the  note ; 


(0  See  Smith  v.  Clapp,  15  Pet.  125;  Suydam  v.  Barber,  6  Duer,  34  ;  Robertson  v. 
Smith,  18  Johns.  459. 

[j)  In  Reese  v.  Abbot,  Cowp.  832,  the  defendants  had  signed  a  note  promising  to 
pay  "jointly  or  severally."  Lord  Mansfield  said  :  "  If  'or'  is  to  be  understood  in  this 
case  as  a  disjunctive,  who  is  to  elect  whether  the  note  shall  be  joint  or  several  1  Cer- 
tainly' the  person  to  whom  it  is  payable.  If  so,  the  plaintiff  has  made  his  election. 
But '  or '  is  synonymous  in  this  case  with  '  and.'  They  both  promise  that  they,  or  one 
of  them,  shall  pay  ;  then  both  and  each  is  liable  in  soUdo.  The  nature  of  the  transac- 
tion forces  this  construction."  See  Bishop  v.  Church,  2  Ves.  Sen.  100,  371  ;  Thomas 
V.  Fraser,  3  Ves.  399 ;  Burn  v.  Burn,  id.  573 ;  Sayer  v.  Chaytor,  1  Lutw.  695 ;  Carter 
V.  Carter,  2  Day,  442.  The  fact  that  one  or  more  of  the  parties  signs  as  "surety" 
does  not  vary  the  case  in  this  respect.  Hunt  v.  Adams,  5  Mass.  358 ;  Read  v.  Cutts, 
7  Greenl.  186.  Cases  of  irregular  execution,  as  where  a  party,  not  a  payee,  signs  upon 
the  back  of  the  note,  or  out  of  the  usual  place,  arc  considered  in  the  Chapter  on  Guar- 
anty. 

(h)  March  v.  Warxl,  Peake,  Cas.  130;  Clerk  r.  Blackstock,  Holt,  474  ;  Hemmenway 
1'.  Stone,  7  JMass.  58  ;  Humphreys  v.  Guillow,  13  N.  H.  385  ;  Ladd  v.  Baker,  6  Foster, 
76 ;  Barnet  i'.  Skinner,  2  Bailey,  88 ;  Karck  v.  Avingcr,  Riley,  201  ;  Groves  v.  Stephen- 
son, 5  Blackf.  584.     See  Van  Alstyne  v.  Van  Slyck,  10  Barb.  383. 

(/)  See,  however.  Lord  Kenyan,  Birkley  v.  Presgrave,  1  East,  220 ;  Leigh,  N.  P. 
e<)4  ;    Willnrd,  J.,  De  Ridder  v.  Schermerhorn,  10  Barb.  638. 

{m\  Parke,  B.,  King  v.  Hoare,  13  M.  &.  W.  505. 


252  NOTES   AND   BILLS.  [CH.  VH. 

but  it  may  be  doubted  whether  a  holder  who  has  sued  each  prom- 
isor as  a  several  promisor  would  be  permitted  to  sue  all  together 
as  joint  promisors. (w)  It  is  certain  that  he  could  not  join  a  part 
only  of  the  promisors,  as  defendants,  (o)  The  rules  of  court  and 
of  procedure  would  regulate  this  matter  generally,  and  they 
would  probably  provide  in  respect  to  costs,  judgment,  and  execu- 
tion, that  injustice  and  oppression  should  not  be  permitted. 


(n)  See  Key  v.  Hill,  2  B.  &  Aid.  598;  Carne  v.  Legh,  6  B.  &  C.  124  ;  Lord  Eldon, 
Ch.,  Ex  parte  Brown,  1  Ves.  &  B.  60. 

(o)  Bangor  Bank  v.  Treat,  6  Greenl.  207 ;  Stori/,  J.,  Minor  v.  Mechanics'  Bank,  1 
Fet.  46 


CH.  VIII.l  RIGHTS   AND   DUTIES   OF   THE   HOLDER.  253 


CHAPTER     VIII 


OF    THE    HOLDER. 


SECTION    I. 

OF  THE  RIGHTS  AND  DUTIES  OF  THE  HOLDER. 

By  the  holder  of  negotiable  paper  is  meant,  in  law,  the  owner 
of  it ;  for  if  it  be  in  his  possession  without  title  or  interest,  he 
is,  in  general,  considered  only  as  the  agent  of  the  owner. (7?) 

His  first  and  principal  right  is  to  demand  payment  of  the  note. 
And  the  various  methods  of  payment,  and  the  effect  of  such  pay- 
ment, will  be  considered  in  the  chapter  on  the  Payment  of  a  Note 
or  Bill. 

The  right  of  the  owner  to  transfer  his  note  or  bill,  by  indorse- 
ment, or  by  delivery  without  indorsement,  and  the  manner  of 
such  transfer,  and  its  effect,  will  be  considered  in  the  succeeding 
chapters  on  Indorsement,  and  on  Transfer  by  Delivery. 

His  principal  obligation  is  to  make  a  proper  presentment  for 
acceptance  or  for  payment ;  and  this  topic  also  will  be  con- 
sidered hereafter. 

The  subject  of  this  chapter  is  different  from  these. 

It  has  already  been  stated,  and  variously  illustrated,  that  prom- 
issory negotiable  paper  differs  essentially  from  all  other  contracts 
or  instruments  in  the  protection  which  the  holder  may  claim. 
Thus,  it  has  been  shown  in  the  chapter  on  Consideration,  that 
while  the  common  law  refuses  to  enforce  any  other  contract 
which  does  not  rest  either  on  a  consideration  or  on  a  seal  (which 
implies  consideration),  it  makes  a  distinct  exception  in  reference 

{p)  Pettee  v.  Prout,  3  Gray,  502,  where  a  note  was  payable  to  a  person  named  or 
bearer,  it  was  held  that  the  production  of  the  note  at  tlie  trial  by  the  plaintiff,  he  not 
being  the  party  named,  was  sufficient  evidence  of  his  title,  although  lie  was  the  general 
agent  of  the  payee  who  was  alleged  in  the  answer  to  be  the  owner  of  the  note  See 
also  infra,  p.  255,  note  s. 

VOL.    I.  22 


254  XOTES   AND   BILLS.  |  CH.  Mil. 

to  negotiable  promissory  paper,  by  the  adoption  of  the  principle 
of  the  law  merchant,  which  forbids  inquiry  into  the  consideration 
whicli  passed  between  any  distant  parties,  hvjt  permits  it  if  the 
owner  demands  pajment  from  the  party  from  whom  he  received 
the  paper. 

The  general  exception  to  this  is  when  the  paper,  not  being 
accommodation  paper,  would  be  subject  to  the  defence  of  want 
or  failure  of  consideration,  if  the  action  were  brouglit  by  the 
promisee  against  the  promisor,  and  a  distant  party,  deriving  title 
from  the  promisee,  is  chargeable  with  having  notice  or  knowledge 
of  this  defence  when  he  took  the  paper.  For  if  so  chargeable, 
the  fact  that  he  paid  value  for  the  paper  does  not  give  him  any 
claim. (7) 

It  is,  however,  quite  certain  that  no  person  is  entitled  to  this 
privilege ;  that  is,  is  entitled  to  hold  the  paper  without  reference 
to  the  original  consideration,  or  to  any  equities  of  the  defendant, 
unless  he  is  a  bona  fide  holder  of  the  paper.  And  the  principal 
purpose  of  this  chapter  is,  first,  to  ascertain  wlio  is  a  bona  fide 
holder  of  negotiable  paper,  for  the  purpose  of  this  rule  ;  and, 
secondly,  what  peculiar  rights  such  a  holder  possesses,  or  what 
rights  he  has,  although  the  party  from  whom  he  derives  his  title 
did  not  himself  possess  them. 


SECTION     II. 

WHO  IS  A  BONA  FIDE   HOLDER   OF  NEGOTIABLE  PAPER. 

The  definition  of  such  a  holder  may  be,  he  who  acquires  the 
paper,  in  good  faith,  for  vahiablc  consideration,  from  one  capable 
of  transferring  the  i)aper.(r) 

Such  a  holder  may  have  taken  the  paper  in  either  of  two  ways  ; 

(7)  Bank  of  Tennessee  i'.  Johnson,  1  Swan,  217.  Thus,  in  an  action  by  a  partner 
as  indorsee  of  a  note  j^ivcn  to  another  partner,  upon  a  sale  by  such  other  partner  to 
tile  maker,  of  partnership  property,  the  plaintiff  stands  in  no  better  position  to  resist  a 
claim  of  set-otf  than  the  payee  of  the  note  himself  would,  if  the  action  had  been 
brouj^iit  in  his  name.     Otis  v.  Adams,  41  Maine,  258.     See  also  cases  irifni. 

(r)  The  protection  which  the  law  extends  to  a  bona  fide  holder  is  not  limited  to  those 
who  deal  in  nej;otiable  paper  as  a  ])art  of  their  rej;ular  and  ordinary  business,  but  ex- 
tends to  every  person  to  whom  such  paper  may  be  lawfully  transferred,  and  to  every  per- 
son who  by  the  i>ayment  of  value  may  actjuire  a  title.     Gould  v.  Seycc,  5  Ducr,  260,  269 


CH.  VIII.]  BONA  FIDE  HOLDER  OF  NEGOTIABLE  PAPER.  255 

or,  as  it  may  be  better  expressed,  at  either  of  two  periods  of 
time ;  he  may  have  taken  the  paper  before  its  dibhonor,  or  he 
may  have  taken  it  after  its  dishonor.  In  many  cases  which  treat 
of  this  question,  no  oiie  is  considered  a  bona  fide  hokler  wlio  did 
not  take  tlie  paper  before  dishonor.  But  while  we  shall  see  that 
he  who  takes  it  after  its  dishonor  stands  upon  very  dilferent 
ground  from  him  who  takes  it  before  dishonor,  still  he  may  take 
it  after  dishonor  in  good  faith,  and  thereby  acquire  valuable 
rights.  We  shall  therefore  consider  these  two  modes  of  obtain- 
ing the  property  of  the  paper  separately. 

1.  Of  one  who  takes  the  paper  before  its  dishonor,  r^i  the  first 
place,  it  is  to  be  remarked,  that  there  is  a.  prima  facie  presump- 
tion of  law  ill  favor  of  every  holder  of  negotiable  paper,  to  the 
extent,  that  he  is  the  owner  of  it,(s)  that  he  took  it  for  value, (^) 
and  before  dishonor,(M)  and  in  the  regular  course  of  business. (y) 
But  this  presumption  may  be  rebutted  on  either  of  these  points. 
And  the  burden  of  proof  lies  on  the  party  who  alleges,  as  his  de- 
fence against  the  claim  of  the  holder  of  the  paper,  that  there 
was  a  fatal  defect  in  the  consideration,  or  in  the  time  of  trans- 
fer.(z<?)     If  a  note  not  negotiable  is  sued  upon  by  a  person  other  /i^^  ^ 

(s)  Pettee  v.  Prout,  3  Gray,  502 ;  Hunter  v.  Kibbc,  5  McLean,  279 ;  Ellicott  v  Martin,      .^^^^y''^,  C. 
6  Md.  509  ;  Warren  v.  Oilman,  15  Maine,  70 ;  M'Gee  v.  Prouty,  9  Met.  547  ;  Picquet  v.  /  ^ 

Curtis,  1  Sumner,  478.  In  an  action  by  an  indorsee  against  an  acceptor,  the  fact  that 
the  acceptance  was  for  accommodation  does  not  throw  the  onus  on  the  plaintiff  to  show 
that  he  gave  value  for  it.  Ellicott  v.  Martin,  supra.  And  if  the  person  wlio  brings  the 
action  is  an  acceptor  or  first  indorser,  and  there  are  subsequent  names  on  the  instru- 
ment, the  law  presumes  that  he  has  been  obliged  to  pay  it,  and  that  lie  is  riglnfullv  in 
possession  of  the  instrument.  Page  v.  Lathrop,  20  Misso.  589  ;  Hunter  v.  Kibbc,  5 
McLean,  279  ;  Dugan  v.  United  States,  .3  Wheat.  172.  In  Henry  v.  Scott,  3  Ind.  412, 
it  was  iicld  that,  in  a  suit  by  the  assignee  of  a  note  against  the  maker,  the  hitter  may 
plead  and  prove  that  tiie  plaintiff  holds  the  notes  merely  as  the  trustee  of  the  payee,  in 
order  to  let  in  as  a  set-off  an  indebtedness  due  from  the  latter  to  the  defendant. 

(t)  Goodman  v.  Simouds,  20  How.  343  ;  Kelly  v.  Ford,  4  Iowa,  140.  See  also 
cases  infra. 

(u)  Lewis  V.  Parker,  4  A.  &  E.  838  ;  Low  v.  Burrows,  2  A.  &  E.  4S3 ;  Masters  v. 
Barrets,  2  Car.  &  K.  715  ;  Walker  v.  Davis,  33  Maine,  516 ;  Burnham  v.  Wood,  8  N.  H. 
334;  Burnham  v.  Webster,  19  Maine,  232;  Ranger  v.  Cary,  1  Met.  369,  Cain  v. 
Spann,  1  McMullan,  258;  Wa.shburn  v.  Ramsdell,  17  Vt  299;  Smith  r.  Clopton,  4 
Texas,  109  ;  McMahan  v.  Bremond,  16  Texas,  331  ;  Dickerson  v.  Burke,  25  Ga.  225. 

(v)   Walker  v.  Davis,  33  Maine,  516.     See  also  cases  supra. 

(w)  Cook  V.  Helms,  5  Wise.  107.  In  Snyder  v.  Riley,  6  Barr,  164,  Gibson,  J.,  after 
stating  that  the  law  presumed  a  note  was  indorsed  before  maturity,  added  :  "  But  the 
contra -t  of  indorsement,  being  without  date  and  without  witnesses,  is  so  peculiarlv  sus- 
ceptible of  a  fraudulent  practice  upon  tlie  drawer,  by  precluding  perhaps  a  just  defence 
on  original  grounds,  that  the  presumption  of  fairness  primarily  applicable  to  it  is  not 


256  NOTES   AND   BILLS.  [CH.  Vm. 

tliau  the  payee,  the  possession  of  the  note  in  court  at  the  trial  by 
tlie  phiintiff  is  not  prima  facie  evidence,  as  in  the  case  of  nego- 
tiable paper,  that  the  note  was  transferred  to  the  plaintiff  before 
the  commencement  of  the  action,  and  before  maturity. (a;) 

If  the  defendant  rest  upon  some  want  of  consideration  which 
attaches  to  the  holder,  the  questions  of  consideration,  which  we 
have  already  considered,  come  in.  And  to  what  has  been  already 
said,  it  may  be  added,  that  the  cases  sometimes  seem  to  adopt,  as 
a  test  of  the  rights  of  the  holder,  the  question  whether  he  "  took 
the  paper  in  the  usual  course  of  business."  This  phrase  was  used, 
for  this  purpose  in  a  case  before  Lord  Mansfield, (v/)  and  many 
judges  have  repeated  it;  but  it  seems  to  be  open  to  some  objection. 
As  a  compendious  and  convenient  phrase,  it  may  continue  to  be 
used  ;  but  it  defines  nothing ;  and  it  would  be  better  if  the  law 
said  more  distinctly  what  are  the  employments  of  negotiable  pa- 
per whicli  leave  to  it  all  its  privileges,  and  what  are  those  which 
take  them  away.  This  phrase  leaves  all  the  real  question  be- 
hind ;  for  this  is  in  each  case,  substantially,  what  is  the  mercan- 
tile character  of  the  transaction.  The  use  of  this  phrase  has 
helped  to  keep  open  the  question,  Is  the  giving  of  accommoda- 
tion paper,  or  the  paying  an  old  debt,  or  securing  an  old  debt  by 


only  of  the  slightest  kind,  but  open  to  he  blown  away  by  the  slightest  breath  of  suspi- 
cion." In  this  case  evidence  was  offered  that  the  defendant  had  publicly  repudiated  the 
note,  which  was  not  put  in  suit  until  after  the  lapse  of  three  years  from  maturity ;  that 
payment  was  not  demanded  at  tlie  place  where  the  note  was  made  [)ayable  ;  that  the  plain- 
tiff refused  to  permit  the  defendant  to  inspect  his  books  ;  and  that  it  did  not  apjicar  that 
the  note  was  protested,  as  is  usual  in  such  cases,  or  notice  of  disiionor  given  to  charge 
the  indorser.  It  was  held  that  all  or  any  of  these  circumstances,  proved  or  conceded, 
would  be  sufficient  to  cast  the  burden  of  proving  the  time  and  the  consideration  of  the 
transfer  upon  the  plaintiff.  In  Hill  v.  Kroft,  29  Penn.  State,  186,  the  facts  that  no  de 
iiiand  of  payment  was  made  upon  the  makers  at  maturity  of  the  note,  that  it  was  not 
protested  for  non-payment,  and  that  suit  was  not  brought  for  more  than  six  months  after 
it  was  due,  were  sufficient  to  shift  the  burden  of  proof.  In  Ranger  v.  Gary,  1  Met.  369, 
it  was  held  that  the  burden  was  not  discharged  by  proof  tiiat  the  note  was  transferred 
and  delivered  to  the  plaintiff  before  dishonor,  but  was  not  indorsed  until  afterwards. 
But  in  McCrcady  i'.  Cann,  5  Harring.  Del.  175,  it  was  held  that  no  inference  of  irreg- 
ularity could  arise  from  the  omission  to  present  the  note  or  to  protest  it,  that  not  being 
necessary  to  charge  the  drawer. 

(r)  Barriek  v.  Austin,  21  Barb.  241.  Sec  also  Birclel)ack  v.  Wilkins,  22  Penn. 
State,  26. 

(;/)  Miller  v.  Race,  1  Burr.  457.  Sec  also  Littcll  v.  Marshall,  1  Bob.  La.  51  ;  Evan,<? 
I'.  Smith,  4  Binn.  .366.  In  Hillings  i'.  Collins,  44  Maine,  271,  it  was  held  that  the  a.ssign- 
ment  of  negotialile  paper  by  ojieration  of  a  bankrupt  or  insolvent  law  was  not  in  the  regu- 
lar course  of  trade,  and  that  the  assignee  could  acquire  only  the  rights  of  the  ins<jlvent 


CH.  VIII.]  BONA  FroE  HOLDER  OF  NEGOTIABLE  PAPER.  257 

the  assignment  of  negotiable  paper,  a  transaction  which  tlie  law 
views  as  according'  to  the  usage  of  merchants  ?  There  is  cer- 
tainly no  unity  of  opinion  on  tliis  point.  Thus,  the  courts  of  New 
York  hold  that  giving  paper  to  secure  an  old  debt  —  and  at  one 
time  they  lield,  or  were  thought  to  hold,  that  paying  an  old  debt 
by  assignment  of  negotiable  paper  —  is  not  mercantile  ;  (c)  while 
the  Supreme  Court  of  the  United  States,  Story,  J.  giving  the 
opinion,  held,  on  better  grounds  we  think,  that  these  transactions 
were  mercantile. (a)  Tiiat  they  are  constantly  occurring  among 
merchants,  and  that  a  considerable  portion  of  the  negotiable  pa- 
per made  in  business  is  used  in  this  way,  is  certain.  Nor  do 
we  see  that  there  is  anything  objectionable,  or  anything  which 
courts  should  seek  to  restrain  or  suppress,  in  this  employment 
of  negotiable  paper ;  while,  on  the  other  hand,  it  conforms  to  the 
fundamental  principle  of  the  law  of  negotiable  paper,  that  it  is 
the  representative  of  money,  and  may  be  used  everywhere  as  its 
substitute.  And  therefore  we  are  disposed  to  believe  that  the 
law  of  this  country  is  tending  towards  the  rule,  that  Avhether  ne- 
gotiable paper  is  sold,  or  discounted,  or  indorsed  over  to  pay  a 
new  debt,  or  for  a  new  purchase,  or  to  secure  a  new  deljt,  or  an 
old  debt,  or  to  pay  an  old  debt,  it  becomes  in  each  case  the  prop- 
erty of  the  holder,  and  carries  with  it  all  the  privileges  of  nego- 
tiable paper,  unless  there  be  something  in  the  particular  transac- 
tion which  is  equivalent  to  fraud,  actual  or  constructiN  e.(6) 

A  person  cannot  acquire  the  rights  of  a  bona  fide  holder  of  a 
note  by  paying  the  amount  thereof  for  the  person  from  whom  it 
is  due,  without  his  request,  express  or  implied. (c) 

If  there  be  fraud  of  any  kind  on  the  part  of  the  holder,  or  on  the 
part  of  the  transferrer  with  any  privity  or  knowledge  on  the  part 
of  the  holder,  he  can,  of  course,  found  no  right  upon  his  fraud. 


(z)  See  supra,  p.  222. 

(a)  Swift  V.  Tyson,  16  Pet.  1. 

(b)  See  supra,  pp.  218-228. 

(c)  Willis  V.  Hobson,  37  Maine,  403.  An  expressman  received  the  money  to  pay 
a  note  which  was  at  a  bank  in  Boston,  which  money  he  disposed  of  in  another  manner, 
and  on  the  last  day  of  grace  he  called  on  the  plaintiffs  and  requested  them  to  pay  the 
note  for  him,  as  he  was  short  of  funds,  which  was  assented  to  ;  but  from  the  lateness 
of  the  request  the  payment  could  not  be  made  that  day,  and  to  protect  the  teller  for 
delay  of  payment  the  firm  name  of  the  express  company  ilnd  the  name  of  the  plaintiffs 
were  indorsed  on  the  note,  and  the  next  day  it  was  paid  by  the  plaintiffs.  Hdd,  that 
Uiey  could  not  recover,  on  the  ground  stated  in  the  text. 

Vol.  L— R 


258  NOTES    AND   BILLS.  [CH.  Vm. 

So,  if,  without  actual  fraud,  there  is  a  want  or  failure  of  con- 
sideration, which  would  operate  as  a  defence  if  the  transferrer 
had  sued,  the  transferee  chargeable  with  notice  or  knowledge 
thereof  is  open  to  the  same  defence,  if  it  be  not  accommodation 
paper.  And  this  rule  has  been  carried  beyond  the  limits  even 
of  constructive  fraud.  For  it  has  been  held  that  the  holder  of  a 
note  had  no  claim  against  parties  to  it,  if  the  note  were  open  to 
a  defence  while  in  the  hands  of  his  transferrer,  and  the  nature 
01  the  paper  or  the  circumstances  of  the  transaction  by  which  ho 
became  the  holder  showed  that  his  ignorance  of  the  defence  arose 
from  a  want  of  reasonable  care  and  diligence.  But  the  "  good 
faith  "  required  of  the  holder  certainly  does  not  now  require  rea- 
sonable care  and  diligence  on  his  part  to  ascertain  the  right  of  the 
transferrer  to  give  him  the  paper.  There  was,  however,  a  period, 
though  not  a  long  one,  when  this  requirement  was  a  part  of  the 
English  law  of  negotiable  paper.  (^)  Then  gross  neghgcnce  was 
adopted  as  the  rule.(e)  Afterwards  gross  negligence  was  held 
merely  to  be  evidence  of  mala  fides,  and  not  the  thing  itself. 
And  now,  to  use  the  emphatic  words  of  Lord  Denman,  the  last 
remnant  of  that  doctrine  is  sliaken  off.(/)  It  may  now  be  said 
to  be  the  law  in  that  country, (g)  that  the  holder  of  negotiable 
paper  does  not  lose  his  rights  by  proof  that  he  took  the  paper 
neghgcntly,  nor  unless  fraud  be  shown. 

Tlie  doctrine  of  Gill  v.  Cubitt  has  been  followed  in  several 
cases  in  this  country, (A)  but  on  principle  and  on  high  authority 


(d)  III  Gill  V.  Cubitt,  3  B.  &  C.  466,  the  question  was  held  to  be,  whetlicr  the  plain- 
tiff had  taken  the  bill  under  circumstances  which  ought  to  have  excited  the  suspicion 
of  a  prudent  and  careful  man.  See  also  Down  ;;.  Hailing,  4  B.  &  C.  3.30 ;  Snow  v. 
Peacock,  2  C.  «&  P.  215;  Beckwith  v.  Corrall,  2  C.  &  P.  261  ;  Strange  i-.  Wigncr,  6 
Bing.  677;  Hatch  v.  Scarles,  2  Small  &  G.  147,  31  Eng.  L.  &  Eq.  219. 

(e)  Crook  v.  Jadis,  5  B.  &  Ad.  909  ;  Backhouse  v.  Harri-son,  id.  1098. 

(f)  "  Gross  negligence  may  be  evidence  of  mala  Jides,  but  it  is  not  the  same  thing. 
We  have  shaken  off  the  last  remnant  of  the  contrary  doctrine."  Per  Lord  Denman, 
C.  J.,  in  Goodman  v.  Harvey,  4  A.  &  E.  870,  6  Ncv.  &,  M.  372.  It  is  a  question  for 
the  jury  whether  the  party  taking  the  bill  was  guilty  of  bad  faith.  See  Cunliffe  v. 
Booth,  3  Bing.  N.  C.  821.     See  Crook  v.  Jadis,  .')  B.  &  Ad.  909,  per  Pattesou,  J. 

(g)  Miller  v.  Race,  1  Burr.  452;  Lawson  v.  Weston,  4  Esp.  56;  Goodman  v.  Ilat^ 
vey,  6  Xev.  &  M.  372  ;  Rai)hacl  v.  Bank  of  England,  17  C  B.  161,  33  Eng.  L.  &  Eq. 
276;  Uihcr  v.  Rich,  10  A.  &  E.  784;  Arbouin  v.  Anderson,  1  Q  B  498. 

(/()  Pringlc  V.  Phillips,  5  Sandf.  157  ;  Ilolbrook  i-.  Mix,  I  E.  D.  Smith,  154  ;  Hall 
V.  Hale,  8  Conn.  .336  ;  Sandford  v.  Norton,  14  Vt.  228  ;  Nicholson  ;;.  J'atlon,  13  La.  43  ; 
Smith  V.  Mechanics',  &c.  Bank,  6  La.  Ann.  610 ;  Grcncaux  v.  Wheeler,  6  Texas, 


CH.  Vni.]  BONA  FIDE  HOLDER  OF  NEGOTIABLE  PAPER.  259 

we  incline  to  the  opinion  tliat  the  rule  of  the  late  English  cases 
is  better  adapted  to  the  free  circulation  of  uegotiable  paper,  and 
the  true  interests  of  trade. (i) 

But  it  must  still  be  true,  that  while  gross,  or  even  the  gross 
est  negligence,  is  a  different  thing  from  fraud,  the  negligence 
may  be  such,  and  so  accompanied,  as  to  afford  reasonable  and 
sufficient  grounds  for  believing  that  it  was  intentional  and 
fraudulent,  (j) 

Thus,  although  notice  or  knowledge  of  defeating  circumstances 
may  not  be  proved,  the  facts  of  the  case,  the  relations  between  the 
parties,  and  their  method  of  dealing,  may  be  such  as  to  show 


515  ;  Cone  v.  Baldwin,  12  Pick.  545.  In  Merriam  v.  Granite  Bank,  8  Gray,  254,  Shaw, 
C.  J.,  after  stating  the  general  rule,  said  :  "  But  this  rule  is  to  l>e  taken  with  a  strict 
observance  of  the  qualification,  that  the  uegotiable  security  be  taken  in  the  due  course 
of  business,  without  notice,  or  reasonable  cause  to  suspect,  that  the  party  from  whom 
it  is  taken  has  not  the  full  title  which  the  possession  of  the  security  and  the  names 
borne  upon  it  naturally  import."  In  this  case  a  promissory  note  indorsed  in  blank  was 
accidentally  left  by  the  owner  in  a  broker's  office.  The  broker  was  indebted  to  a  bank 
for  money  lent,  payable  on  demand,  and  he  was  accustomed  to  give  the  bank  as  col- 
lateral security  for  such  loans  his  own  memorandum  checks,  payable  on  demand,  and 
indorsed  notes  as  collateral  security.  The  note  in  question  was  found  among  these 
notes  and  checks,  but  there  was  no  evidence  of  the  manner  in  which  it  came  there. 
The  fomier  president  of  the  bank  testified,  that,  from  his  knowledge  of  the  business  of 
the  brokers  in  question,  and  from  what  they  had  often  told  him,  he  supposed  that  the 
collateral  notes  were  not  notes  which  the  brokers  had  purchased  or  discounted,  but 
notes  on  which  they  had  made  advances,  and  which  they  held  as  collateral.  It  Tvas 
held,  under  these  circumstances,  that  the  bank  took  the  notes  on  the  credit  of  the 
brokers  merely,  and  the  taking  was  under  such  circumstances  as  to  put  them  on  their 
guard  to  inquire  into  the  title  of  the  brokers. 

(i)  Matthews  v.  Poythress,  4  Ga.  287,  306 ;  Ellicott  v.  Martin,  6  Md.  509.  This 
question  was  considered  at  length  in  the  recent  case  of  Goodman  v.  Simonds,  20  How. 
343,  363,  in  which  it  is  said,  that  if  the  defect  or  infirmity  in  the  title  of  the  instrument 
appears  on  its  face  at  the  time  of  transfer,  the  question  whether  the  person  who  took  it 
had  notice  or  not  is  generally  a  question  of  construction  for  the  court ;  but  that  where 
it  is  proposed  to  impeach  the  title  of  the  holder  by  proof  of  facts  and  circumstances 
outside  of  the  instrument  itself,  the  defendant  is  bound  to  prove  notice  or  knowledge 
of  such  facts,  and  mere  want  of  care  and  caution  on  the  part  of  the  holder  is  not  suffi- 
cient. In  Crosby  v.  Grant,  36  N.  H.  273,  the  point  was  not  decided,  but  it  was  held, 
that,  if  a  person  who  took  a  note  under  circumstances  of  suspicion  such  as  ought  to 
put  him  on  inquiry,  took  it  subject  to  equities,  yet  the  facts  that  the  note  was  taken  on 
the  last  day  of  grace  from  a  bank  in  Boston,  Massachu-setts,  where  it  had  been  dis- 
counted, the  maker  residing  at  Great  Falls  in  New  Hampshire,  the  full  amount  being 
paid  to  the  banks,  and  at  the  trial  the  indorsements  of  several  parties  appeared  to  be 
erased  from  the  note,  leaving  upon  it  that  of  the  payee  alone,  do  not  constitute  a  case 
for  the  application  of  this  doctrine.  See  also  Worcester  Co.  Bank  v.  Dorchester,  &c. 
Bank,  10  Cush.  488. 

{j)  See  cases  cited  supra,  p.  258. 


260  NOTES   AND    BILLS.  [CH.  Vm. 

that  there  was  either  knowledge,  or  an  intentional  and  careful 
avoidance  of  knowledge  ;  this  we  should  say  must  have  the  same 
effect  in  law  as  knowledge. 

But  evidence  of  notice  to,  or  of  knowledge  on  the  part  of  the 
holder,  of  facts  which  would  defeat  his  recovery,  must  not  he 
ambiguous. (A;)  The  negligence  of  the  loser  is,  however,  no  ex- 
cuse for  the  dishonesty  of  the  receiver,  and  therefore  a  failure 
to  give  public  notice  of  the  loss  of  a  bill  or  note  will  not  pre- 
clude the  owner  from  showing  that  the  holder  took  it  viala  fide. 
But  the  negligence  of  the  one  may  be  an  excuse  for  the  negli- 
gence of  the  other,  and  might  authorize  him  to  defend  himself 
on  the  maxim.  Potior  est  conditio  possidentis. {I) 

If  the  defendant  is  compelled  by  due  process  of  law  to  pay  the 
note  to  another  party,  the  plaintiff  who  holds  the  note  cannot 
recover  it  of  him.  Thus,  if  the  paper  be  not  negotiable,  and 
trustee  process  is  served  upon  the  promisor,(m)  or  if  the  paper 
be  negotiable,  and  such  process  is  served  in  States  where  it  may 
be  served  in  such  cases,  the  promisor  must  pay  the  plaintiff  in 
the  trustee  process,  and  this  would  be  a  defence  if  sued  by  the 
holder. («)  But  if  the  paper  be  negotiable,  and  such  attach- 
ment is  not  allowed  by  statute,  the  rights  of  a  bona  fide  holder 
are  not  affected  by  such  an  attachment,  (o)  Although  it  is  made 
before  the  transfer  to  tlie  holder,  the  doctrine  of  lis  pendens^ 
viz.  that  whoever  purchases  property  which  is  in  litigation  at 
the  time  takes  it  subject  to  any  decree  which  may  be  made  in 
respect  to  it  in  the  pending  suit,  does  not  apply  to  negotiable 
paper.  (/>) 


{k)  "  It  must  clearly  appear  that  the  indorsee  was  apprised  of  such  circumstances  a3 
would  have  avoided  the  note  in  the  hands  of  the  indorscr."  Per  Wooclburi/,  J.,  Perkins 
I'.  Challis,  1  N.  H.  254. 

(/)  Per  Best,  C.  J.,  in  Snow  v.  Peacock,  3  Bing.  406,  411,  11  J.B.  Moore,  286.  See 
also  Matthews  v.  Poythress,  4  Ga.  287. 

(w)  Cushman  v.  Hayncs,  20  Pick.  132. 

(n)  Peck  V.  Maynard,  20  N.  II.  183;  Thompson  v.  Carroll,  36  N.  H.  21  ;  Steams 
V.  Wrislcy,  30  Vt.  661 ;  Amoskcag  Manuf.  Co.  v.  Gibbs,  8  Foster,  316;  Griswold  v. 
Davis,  31  Vt.  390. 

(o)  Kiimr  V.  Ehler,  18  Pcnn.  State,  388;  Ludlow  r.  Bingham,  4  Dallas,  47  ;  Huff 
r.  Mills,  7  Ycrg.  42;  Ilinsdill  r.  SafTord,  11  Vt  309  ;  Little  v.  Hale,  id.  482.  In  Ver- 
mont, by  a  statute  passed  in  1841,  negotiable  paper  is  subject  to  attachment  until  notice 
of  the  tnin'<fcr  is  given.  A  statute  passed  in  18.52  exempted  from  the  operation  of  this 
statute  paper  discounted  at  banks.     Griswold  v.  Davis,  31  Vt.  390. 

(p)  Hill  V.  Kroft,  29  Pcnn.  Sutc,  186 ;  Winston  v.  Wcstfcldt,  22  Ala.  760. 


CH.  Vni.]  BONA  FIDE  HOLDER  OF  NEGOTIABLE  PAPER.  261 

The  knowledge  of  a  defect  or  defeasance  will  not  destroy  the 
riglits  of  the  transferee,  unless  it  be  a  defect  or  defeasance  which 
would  have  destroyed  the  rights  of  his  transferrer.     Tlius,  if  A 
makes  a  note  to  B,  who  indorses  it  for  value  to  C  after  the  consid- 
eration has  wholly  failed,  but  before  its  maturity,  and  B  has  no 
knowledge  of  this  failure,  but  C  has  such  knowledge,  he  will  nev- 
ertheless recover  on  the  note,  because  he  stands  in  B's  place,  and 
has  all  B's  rights.     And  therefore  any  of  C's  indorsees,  immedi- 
ate or  distant,  will  be  unaffected  either  by  C's  knowledge  or  by 
their  own.(^)     And  knowledge  on  the  part  of  the  holder,  at  the    (j^c-/~~S-^ 
time  he  took  the  note,  that  it  was  not  to  be  paid  on  a  specified  ^.c.j.^Zh-^<. 
contingency,  is  not  sufficient  to  defeat  his  right  to  recover,  al-       /^    . 
though  the  contingency  had  then  happened,  if  he  was  ignorant  ^-  ^  ^ 
of  this  fact.(r)     So,  too,  it  has  been  held  that  a  person  who  ac-    "^  ^ ^^"^^    ' 
quires  a  good  title  to  a  note,  by  taking  it  in  ignorance  that  the     ^^_^__ 
agent  making  it  had  exceeded  his  authority,  may  take  a  renewal 
of  the  note  from  the  agent,  although  at  that  time  he  knew  that 
the  original  note  was  given  without  authority. (s) 

If  the  maker  or  other  person  liable  on  negotiable  paper  pays  it 
before  it  is  due,  he  is  undoubtedly  liable  upon  it  to  a  bona  fide 
holder  for  value. (^) 

2.  Where  the  paper  is  taken  after  dishonor.  We  prefer  this 
phrase  to  the  more  usual  phrase  "  after  maturity  "  ;  for  dishonor 
and  non-payment  at  maturity  are  not  necessarily  the  same  thing. 
For  example,  we  shall  see  that  a  note  on  demand  is  mature  and 
demandable  at  once.  But  it  is  not  dishonored  until  a  reasonable 
period  of  non-payment  has  elapsed. 

If  negotiable  paper  be  taken  after  dishonor,  it  loses  a  large 
part  of  its  peculiar  privileges,  because  only  so  long  as  it  may  be 

(7)  Hascall  v.  Whitmore,  19  Maine,  102;  Prentice  v.  Zane,  2  Grat.  262;  Boyd  v. 
McCann,  10  Md.  118;  Howell  v.  Crane,  12  La.  Ann.  126;  Watson  v.  Flanagan,  14 
Texas,  354. 

(r)  Adams  v.  Smith,  35  Maine,  324.  See  also  Ferdon  v.  Jones,  2  E.  D.  Smith, 
106 ;  Davis  v.  McCready,  4  E.  D.  Smith,  565. 

(s)  Hopkins  v.  Boyd,  11  Md.  107.  The  original  note  in  this  case  was  signed  by  one 
partner  in  the  firm  name.  It  was  given  out  of  the  course  of  the  partnership  business, 
and  without  the  knowledge  of  the  other  partner.  The  plaintifif  did  not  know  this  at  the 
time  he  took  the  note  ;  but  he  was  informed  of  the  fact  before  the  note  was  renewed. 
It  was  held  that  his  knowledge  was  no  defence  to  an  action  on  the  renewed  note. 

{I)  See  cases  cited  p  230,  note  w;  also,  Webster  v.  Lee,  5  Mass.  334;  Wheeler  r. 
Guild,  20  Pick.  545  ;  White  v.  Kibling,  11  Johns.  128  ;  Brown  v.  Davies,  3  T.  R..80; 
Dod  V.  Edwards,  2  Car.  &  P.  602. 


262  NOTES   AND   BILLS.  [CH.  Vm. 

regarded  as  certain  to  become  so  much  money  at  a  definite  pe- 
riod, is  it  the  representative  or  equivalent  of  money. 

It  may  still  be  transferred,  either  by  mere  delivery,  or  by  in- 
dorsement and  delivery,  according  to  the  character  of  the  paper 
And  if  so  transferred  for  value,  the  transferee  acquires  against 
all  previous  parties  all  the  rights  which  his  transferrer  held 
against  them.  For  it  is  still  so  far  negotiable  as  to  admit  of  this 
transfer,(?^)  but  is  not,  after  dishonor,  so  far  negotiable,  that 
equities  of  defence  unknown  to  the  taker  will  not  defeat  it  in  his 
hands. 

We  will  proceed  to  consider  the  question,  What  constitutes  the 
dishonor  of  negotiable  paper  ?  And  the  general  definition  of  this 
may  ))e,  the  non-payment  of  negotiable  paper  when  it  should  be 
paid.(i;)  It  will  follow  from  this  definition,  that  the  dishonor  may 
come  from  non-payment  at  a  time  certain,  if  the  paper  is  so  paya- 
ble. Or  from  a  demand  and  refusal,  if  the  paper  were  payable  on 
demand.  Or  from  such  a  lapse  of  time,  if  the  paper  were  paya- 
ble on  demand,  that  the  law  considers  that  the  paper  ought  to 
have  been  ])aid,  and  that  every  one  is  bound  to  suppose  tliat  the 
paper  must  have  been  demanded  and  refused  somewhere  within 
that  time.  If  the  makers  of  a  negotiable  instrument  negotiate  it 
after  it  is  due,  it  would  seem  that  they  could  not  set  up,  in  de- 
fence to  an  action  by  a  bona  fide  holder,  want  or  failure  of  con- 
sideration in  the  inception  of  the  instrument. (?6') 

When  paper  is  payable  at  a  certain  time,  and  in  the  case  of 
bills  payable  at  sight  where  these  have  grace,  the  last  day  of 
grace  is  of  course  the  time  at  which  non-payment  operates  dis- 
honor. 

The  question  may  arise,  on  what  part  of  the  day  does  dishonor 
fall  upon  tbe  note  by  non-payment.  We  should  say,  not  initil 
the  close  of  business  hours  in  our  cities,  and  not  until  the  close 


(h)  "A  note  docs  not  cease  to  he  ncf^otiablc,  because  it  is  overdue.  The  promisee, 
hy  liis  indorsement,  may  still  give  a  good  title  to  the  indorsee."  Per  Slmw,  C.  J.,  in 
Baxter  v.  Little,  6  Met.  7.  Sec  also  Powers  v.  Nelson,  19  Misso.  190,  .and  cases 
passim. 

{v)  In  Fitch  v.  Jones,  5  Ellis  &  B.  238,  32  Eng.  L.  &  Eq.  134,  a  note  bore  date 
Jan.  I,  1854,  payable  in  two  months.  Across  the  note  was  written,  in  the  hand  of  the 
maker,  "  Due  4th  March,  1855."  The  note  was  in  fact  made  Jan.  1,  18£5,  and  was  in- 
dorsed to  the  plaintifr  before  Miirch  1,  185.^).  Ihhl,  that  the  note  was  not  at  this  fimo 
dishonored. 

{w)  Boehin  v.  Sterling,  7  T.  R.  423. 


CH.  ^^II.]    BOXA  FIDE  HOLDER  OF  NEGOTIABLE  PAPER.        263 

of  the  day  where  no  usage  Ihnited  the  biismess  hours,  —  unless 
there  had  been  previously  an  actual  and  positive  refusal  to  pay 
the  paper,  and  notice  or  knowledge  thereof  on  the  part  of  the 
taker. 

It  is  obvious,  however,  that  cases  of  this  kind  might  differ 
much  in  their  facts,  and  in  the  legal  inferences  from  them.  Tlius, 
if  the  holder  of  a  note  offers  it  for  sale  at  nine  o'clock  of  the 
day  of  its  maturity,  on  the  ground  that  he  needs  the  money  at 
once,  and  shall  not  otherwise  have  it  until  the  banks  close,  or 
until  they  open  next  morning,  and  the  buyer  believes  him,  he 
would  not  be  aflfectod  by  the  fact  of  a  previous  refusal  to  pay  on 
that  morning,  even  if  he  gave  less  than  the  face,  because  he 
might  calculate  the  chances  of  the  promisor's  solvency.  But  if 
he  bought  it  ten  minutes  before  the  last  minute  when  it  could  be 
paid,  his  conduct  would  be  much  more  open  to  the  inference  that 
he  knew  the  paper  had  been  refused,  or  would  be  unpaid,  and 
took  his  risk  of  getting  the  money ;  and  if  the  paper  had  then 
been  refused,  he  must  be  regarded  as  the  taker  of  dishonored 
paper.  Perhaps,  however,  the  simpler  and  better  rule  may  be 
this.  As  the  payer  has  all  the  business  hours  of  the  last  day  in 
which  he  may  pay  the  paper,  all  other  persons  may  suppose  it 
unpaid,  and  purchase  it  in  that  belief,  until  the  close  of  those 
hours,  (rt) 

3.  Of  the  dishonor  of  paper  payable  on  demand.  Bills  on 
sight,  and  bills  or  notes  payable  on  demand,  have  no  dcfmite 
time  at  which  non-payment  at  once  operates  dishonor.  Of  this 
kind  of  paper  three  things  must  be  said. 

One  is,  that  a  reasonable  time  must  elapse  before  mere  non 
payment  dishonors  the  bill  or  note.  What  this  time  is,  has  not 
been,  and  cannot  be,  fixed  by  any  definite  and  precise  rule.  One 
day's  delay  of  paper  on  demand  certainly  would  not  dishonor  it ; 
five  years  certainly  would.  And  in  each  case,  how  many  days,  or 
weeks,  or  months,  are  requisite  for  this  effect,  must  depend  upon 
the  test,  whether  so  long  a  time  has  elapsed,  that  it  must  be  in- 
ferred from  the  particular  circumstances  and  the  general  conduct 

(.r)  In  Crosby  v.  Grant,  36  N.  H.  27.3,  it  was  held  that  a  note  payable  generally,  and 

not  at  any  particular  place,  might  be  bought  from  a  bank  where  it  had  been  discounted, 

on  the  last  day  of  grace,  and  the  holder  protected.     But  in  Pine  i*.  Smitii,  11  Gray, 

the  same  point  was  decided  the  other  way,  on  grounds  of  the  sufficiency  of  which 

we  have  some  doubt. 


264  NOTES   AND   BILLS.  [CH.  VIH. 

of  business  men,  both  of  which  should  be  considered,  that  the 
paper  in  question  must  have  been  intended  to  be  paid  within  this 
period,  and,  if  not  paid,  must  have  been  refused. (^)     Tliere  are 

(y)  Muilman  r.  D'Eguino,  2  H.  Bl.  565  ;  MuUick  r.  Radakissen,  9  Moore,  P.  C.  46, 
28  Ent;.  L.  &  Eq  86  ;  Shute  v.  Robins,  Moody  &  M.  133  ;  Mellish  i-.  Rawdon,  9  Ring. 
416;  Martin  v.  Winslow,  2  Mason,  241  ;  Wallace  v.  Agrj,  4  Mason,  336,  5  Mason, 
118;  Ayinar  v.  Beers,  7  Cowen,  705;  Robinson  v.  Ames,  20  Johns.  140;  Gowan  ». 
Jackson,  20  Johns.  176;  Dumont  v.  Pope,  7  Blackf.  367;  Lord  r.  Chadbourne,  8 
Greenl.  198;  Perry  v.  Green,  4  Harrison,  61  ;  Lockwood  v.  Crawford,  18  Conn  361  ; 
Culver  V.  Pari.sh,  21  Conn.  408  ;  Atlantic  DeLaine  Co.  v.  Tredick,  5  R.  I.  171  ;  Carll 
V.  Brown,  2  Mich.  401  ;  M'Kinney  v.  Crawford,  8  S.  &  R.  351  ;  Emerson  v.  Crocker, 
5  N.  H.  I.i9;  Odiorne  v.  Howard,  10  N.  H.  343;  Carlton  v.  Bailey,  7  Foster,  2.30; 
Parker  I'.  Tuttle,  44  Maine,  459;  Dennen  v.  Haskell,  45  Maine,  431  ;  Jerome  v.  Steb- 
bins,  14  Calif.  457  ;  Ayer  v.  Hutchins,  4  Mass.  370  ;  Thurston  v.  M'Kown,  6  Mass.  428  ; 
Hemmenway  v.  Stone,  7  Mass.  58  ;  Field  v.  Nickcrson,  13  Mass.  131  ;  Stockbridgc  v. 
Damon,  5  Pick.  225;  Thompson  v.  Hale,  6  Pick.  259;  Sylvester  v.  Crapo,  15  Pick. 
93;  Stevens  v.  Bruce,  21  Pick.  193.  American  B.ank  ».  Jenness,  2  Met.  288;  Ran- 
ger V.  Cary,  1  Met.  369 ;  Knowles  v.  Parker,  7  Met.  30 ;  Seaver  v.  Lincoln,  21  Pick. 
267  ;  Weeks  v.  Pryor,  27  Barb.  79. 

In  Furman  v.  Haskin,  2  Caines,  369,  a  note  payable  on  demand  was  considered  dis- 
honored after  eijrhtecn  months  from  the  time  when  it  was  given  ;  in  Sice  v.  Cunning- 
h.am,  1  Cowen, 397,  after  five  months;  in  Field  v.  Nickerson,  13  Mass.  131,  after  eii:ht 
months ;  in  Losee  v.  Dunkin,  7  Johns.  70,  after  two  months  ;  in  Martin  v.  Winslow,  2 
Mason,  241,  after  seven  months;  in  Camp  v  Scott,  14  Vt. .387,  after  two  months  ;  in 
Atlantic  DeLaine  Co.  v.  Tredick,  5  R.  I.  171,  after  thirteen  months;  in  Emerson  ». 
Crocker,  5  N.  H.  159,  after  ten  months;  in  Carlton  v.  Bailey,  7  Foster,  230,  after  seven 
months  and  a  half;  in  Parker  v.  Tuttle,  44  Maine,  459,  after  four  months ;  in  Jcromo 
r.  Stebbins,  14  Calif.  457,  after  thirteen  months  ;  in  Loomis  v.  Pulvcr,  9  Jolms.  244, 
after  two  years  ;  in  American  Bank  v.  Jenness,  2  Met.  288,  after  eight  months. 

In  Avmar  v.  Beers,  7  Cowen,  705,  a  delay  of  twenty-nine  days  was  not  considered 
unreasonable  under  the  circumstances  of  the  case  ;  so  in  Van  Hoesen  v.  Van  Alstyne, 
3  Wend.  75,  a  delay  of  two  or  three  months  ;  in  Robinson  v.  Ames,  20  Johns.  146,  a 
delay  of  seventy-five  days  ;  in  Wetliey  v.  Andrews,  3  Hdl,  582,  a  delay  of  four  or  five 
weeks;  in  Lockwood  v.  Crawford,  18  Conn  361,  a  delay  of  sixty  days;  in  Dennett  v. 
Wyman,  13  Vt.  485,  a  delay  of  two  days ;  in  Sanford  v.  Mickles,  4  Johns.  224,  a  delay 
of  five  months  ;  in  Carll  v.  Brown,  2  Mich  401,  a  delay  of  twenty-five  days;  in  Den- 
nen V.  Haskell,  45  Maine,  430,  a  delay  of  thirty  days;  in  Ranger  v.  Cary,  1  Met.  369, 
a  delay  of  one  month. 

The  question  of  reasonable  time  is  well  stated  by  Parker,  C.  J  ,  in  Field  v.  Nick- 
erson, 13  .Mass.  131.  After  referring  to  the  analogy  generally  recognized  in  this  respect 
between  a  note  payable  on  deman<l  and  a  bill  payable  at  .sight,  so  that,  as  in  the  latter 
case  the  holder  must  present  his  bill  for  acceptance  within  a  rca.sonai)le  time,  in  order 
to  charge  the  drawer,  bo  in  the  former,  the  indorsee  must  make  demand  of  jiayment 
on  the  promisor  within  a  reasonable  time,  in  order  to  charge  the  indorser,  the  learned 
judge  says:  "  And  we  are  of  opinion  that  this  is  the  correct  doctrine  on  the  subject. 
For  as,  on  the  one  hand,  it  can  hardly  be  supposed  that  the  indorser  and  indorsee, 
when  they  make  their  contract,  contemplato  a  liability  on  the  indorser,  unless  reasona- 
ble pains  should  l)e  taken  to  procure  payment  of  the  actual  debtor  ;  so,  on  the  otner, 
we  do  not  think  it  enters  into  their  calculations  that,  as  between  them,  the  note  should 
be  considered  due  when  drawn  in  such  manner  as  to  require,  in  all  cases,  a  doman.J 


CH.  VIII.]  BONA  FIDE  HOLDER  OF  NEGOTIABLE  PAPER,  265 

two  classes  of  cases  in  which  this  question  of  reasonable  time 
has  arisen  ;  the  one,  as  to  what  is  a  reasonable  time  to  make  a 
demand  on  a  note  payable  on  demand,  or  a  presentment  of  a  bill 


the  instant,  or  the  same  day,  it  may  have  been  indorsed.  As  it  respects  the  promisor 
himself,  he  is  answerable  immediately  to  the  promisee  or  indorsee ;  and  lie  may  be 
sued  the  instant  he  has  given  his  signature,  even  without  a  previous  demand.  But  the 
condition  on  which  tiie  indorser  is  liable  is,  that  payment  shall  be  demandud  witiiin  a 
reasonable  time,  and  the  earliest  notice  possible  given  of  refusal.  This  time  may, 
therefore,  vary  according  to  the  circumstances  and  situation  of  tlie  parties,  to  be  deter- 
mined by  tlic  jury  under  tlie  direction  of  the  court.  It  is  impossible  to  tix  any  precise 
period,  each  case  depending  upon  its  own  circumstances.,  as  in  the  case  of  a  hill  pay- 
able at  sight,  whicii  must  be  presented  to  the  drawer  as  soon  as  can  conveniently  i)e 
done,  taking  into  view  all  the  circumstances  of  the  iiolder  and  the  drawer."  In  Seaver 
V.  Lincoln,  21  Pick.  267,  iS/utw,  C.  J.  said,  that  ''one  of  the  most  difficult  questions  pre- 
sented for  the  decision  of  a  court  of  law  is,  what  shall  be  deemed  a  reasonable  time 
within  which  to  demand  payment  of  the  maker  of  a  note  ])ayable  on  demand,  in  order 
to  charge  tlie  indorser.  It  depends  upon  so  many  circumstances  to  determine  what  is 
a  reasonable  time  in  a  particular  case,  that  one  decision  goes  but  little  way  in  establish- 
ing a  precedent  for  another." 

In  Massachusetts  it  is  provided  by  statute  that,  upon  a  promissory  note  payable  on 
demand,  a  demand  made  at  the  expiration  of  sixty  days  from  the  date  thereof,  without 
grace,  or  at  any  time  within  that  term,  shall  be  deemed  to  be  made  within  a  reasonable 
time ;  but  no  subsequent  presentment  and  demand  shall  charge  the  indorser.  Gen. 
Stats.  I860,  c.  5.3,  ^  8.  This  statute  does  not  apply  to  the  case  of  such  a  note  indorsed 
after  this  term  of  sixty  days  from  its  date  has  elapsed,  but  in  such  case  it  seems  that  a 
demand  on  the  maker  is  within  a  reasonable  time,  if  made  within  a  like  term  of  sixty 
days  from  the  indorsement  of  the  note.     Rice  v.  Wesson,  1 1  Met.  400. 

And  in  respect  to  bills  of  exchange  payable  on  or  after  sight,  in  some  foreign  na- 
tions there  are  positive  enactments  fixing  the  times  of  presentment  with  reference  to 
the  places  where  the  bill  is  drawn,  and  where  the  drawee  resides,  as  in  the  French 
Code  de  Commerce,  Lib.  1,  pt.  8,  §  11. 

In  England  it  has  been  held  that  a  negotiable  note  payable  on  demand  is  not  dishon- 
ored by  mere  lapse  of  time.  Something  more  must  be  brought  to  the  knowledge  of  the 
indorser  to  charge  him  with  the  equities  of  the  original  parties.  Barough  v.  White,  4 
B.  &  C.  32.5  ;  Brooks  v.  Mitchell,  9  M.  &  W.  15.  In  the  latter  case  it  was  held  that  a 
note,  payable  on  demand  with  interest,  made  in  1824,  and  indorsed  in  183S,  and  upon 
which  no  interest  had  been  paid  for  three  years  immediately  preceding  the  indorsement, 
was  not  subiect  to  an  equitable  defence  as  between  the  original  parties.  It  was  urged  in 
that  case,  that  the  non-payment  of  interest  for  three  years  was  sufficient  to  put  the  in- 
dorsee upon  inquiry.  But  Parke,  B.,  expressing  the  opinion  of  the  court,  said  :  "I 
cannot  assent  to  the  arguments  urged  in  behalf  of  the  plaintifls.  If  a  promissory  note 
payable  on  demand,  is  after  a  certain  time  to  be  treated  as  over-due,  although  payment 
has  not  been  demanded,  it  is  no  longer  a  negotiable  instrument ;  but  a  promissory 
note,  payable  on  demand,  is  intended  to  he  a  continuing  security." 

A  promissory  note  payalile  on  demand  is  probably  a  species  of  security  rarely  used 
wi  England ;  and  when  it  is  used,  it  is  regarded  as  a  continuing  security  until  the  holder 
suall  see  fit  to  render  it  due  by  a  demand.  Here  it  has  long  been  in  use,  and  the  rules 
applicable  to  it  have  been  fixed  after  the  analogy  of  bills  payable  at  sight.  See  re- 
ru-u-ks  of  Shaw,  C.  J.,  in  Sylvester  v.  Crapo.  15  Pick.  92,  94. 

VOL.  I.  23 


266  NOTES  AND   BILLS.  [CH.  Vm. 

drawn  payable  on  or  after  sight,  in  order  to  charge  an  indorser ; 
and  the  other  as  to  the  length  of  time  in  which  such  a  note  or 
bill  would  be  held  to  be  dishonored,  and  subject  to  those  grounds 
of  defence  which  would  have  been  open  to  the  maker  of  tlie  note 
or  the  drawer  of  the  bill  in  a  suit  by  the  payee. (c) 

The  rule  requiring  the  presentment  of  the  bill  or  note  within 
a  reasonable  time  applies  in  the  same  way,  though  the  drawer  or 
indorser  has  sustained  no  actual  loss  by  the  delay,  and  has  con- 
thiued  solvent  up  to  the  time  of  the  presentment. (a)  In  deter- 
mining this  question  of  reasonable  time,  it  is  proper  to  look  to 
tlie  interests  of  the  holder  of  the  paper,  as  well  as  of  the  drawer ; 
and  accordingly,  in  case  of  a  foreign  bill,  the  rate  of  exchange 
is  a  circumstance  that  may  be  considered  in  determining  whether 
the  holder  has  delayed  unreasonably  to  put  it  in  circulation  or  to 
send  it  forward  to  the  drawee ;  for  it  cannot  be  required  of  him 
to  part  with  it  instantly  under  all  disadvantages. (/>)     A  delay 

(z)  Sec  Ranger  v.  Gary,  1  Met.  369,  373,  per  Deivei/,  J. 

(a)  Carter  i-.  Flower,  16  M.  &  W.  743  ;  Mullick  v.  Eadakissen,  9  Moore,  P.  C.  46, 
28  Eng.  L.  &  Eq.  86.  In  the  latter  case.  Baron  Parke  said,  on  this  point:  "  The  court 
below  decided,  that  the  solvency  of  the  drawers  and  the  want  of  proof  of  actual  loss  by 
laches  constituted  no  answer  to  the  objection  of  laches.  We  think  they  were  right. 
There  is  no  trace  of  such  a  qualification  in  the  ela!)orate  judgment  of  Lord  Chief  Jus- 
tice Tindal,  in  Meilish  r.  Rawdon,  9  Bing.  417,  in  which  the  circumstances  which  con- 
stitute a  reasonable  delay  are  fully  discussed  ;  no  mention  is  made  of  the  insolvency  of 
the  drawer,  subsc(juent  to  the  drawing,  although  it  did  occur  in  that  case,  or  some  loss 
by  the  drawer,  being  an  essential  condition  to  the  application  of  the  rule  laid  down ; 
and  in  Muilman  v.  D'Rguino,  2  H.  Bl.  565,  it  was  clear  that  the  failure  of  the 
drawer  caused  no  damage  to  the  plaiiititf,  being  before  the  time  that  the  l)ill  could 
possibly  iiavc  been  presented  in  India;  yet  tliat  circumstance  was  not  mentioned  as 
dispensing  with  the  obligation  to  present  in  a  reasonable  time ;  and,  with  respect  to  all 
bills  of  exchange  payable  after  date,  it  is  fully  settled,  that  neither  the  want  of  present- 
ment at  the  time  the  bill  is  due,  nor  the  want  of  due  notice,  arc  excused  because  the 
drawer  has  continued  solvent,  or  the  holder  incurred  no  loss  by  non-prcs(;ntment  or 
want  of  regular  notice.  This  point  was  fully  considered  in  the  case  of  Carter  v. 
Flower,  16  M.  &  W.  743,  and  wc  believe  admits  of  no  doubt;  and  wc  agree  with  the 
court  below,  that  the  continued  solvency  of  the  drawers  does  not  prevent  the  applica- 
tion of  the  rule  that  the  bill  must  be  presented  in  a  reasonable  time,  with  reference  to 
the  interest  of  the  drawer  to  put  the  bill  into  circulation,  or  the  interest  of  the  drawee  to 
have  the  bill  speedily  presented  "  In  this  resjiect  a  check  dillcrs  from  a  bill  of  ex- 
change, and  the  doctrine  that  the  drawer  of  a  check  continues  liable  unless  ho  has 
nctuiilly  sustained  a  loss  from  the  delay  of  presentment  has  no  application  in  the  case 
of  a  bill  of  exchange. 

(b)  Meilish  V.  Rawdon,  9  Bing.  416  Timhl,  C.  J.,  delivering  the  opini.»n  of  the 
court,  in  refi-rring  to  the  exjiression  used  by  Ihtller,  ,].,  in  MniliTnin  v.  D'Kg'iino,  2  H. 
Bl.  565,  that  "if,  instead  of  putting  it  in  circulation,  tlie  luildcr  were  to  lo'k  it  up  for 
any  length  of  time,  I  should    say  that  he  was  guilty  of  laches,"  said  :  "  '  To  lock  the 


on.  Vin.]  BONA  FIDE  HOLDER  OF  NEGOTIABLE  PAPER.  267 

arising  from  tlio  sickness  of  the  holder,  or  from  other  accident, 
may  be  properly  considered. (c)  If  the  bill  be  kept  in  circulation, 
its  final  presentment  may  be  delayed  as  long  as  the  reasonable 


bill  up  for  any  len,<,nh  of  time  '  docs  not  and  cannot  mean,  that  keeping  it  in  his  hands 
for  any  time,  however  short,  would  make  him  guilty  of  laches.  It  never  can  be  re- 
quired of  him,  instantly  on  the  receipt  of  it,  under  all  disadvantages,  either  to  put  it 
into  circulation,  or  to  send  it  forward  to  the  drawee  for  acceptance.  To  hold  the  pur- 
chaser bound  by  such  an  obligation  would  greatly  impede,  if  not  altogether  destroy,  the 
market  for  buying  and  selling  foreign  bills,  to  the  great  injury,  no  less  than  to  the  in- 
convenience, of  the  drawer  himself.  For,  if  he  has  no  opportunity  to  realize  his  bill 
by  sale  at  home,  he  can  only  obtain  the  amount  by  sending  it  out  to  a  correspondent 
at  the  place  upon  which  it  is  drawn,  incurring  thereby  delay,  expense,  and  risk  ;  and  if 
the  buyer  is  not  to  be  allowed  a  reasonable  discretion  as  to  the  time  of  jiarting  with  the 
bill,  kovf  can  the  drawer  expect  to  find  a  ready  sale?  The  meaning  of  the  expression 
above  referred  to  is,  and  indeed  the  very  form  of  expression  denotes  it,  that  he  must 
not  lock  the  bill  up  for  an  indefinite  time  ;  that  there  must  be  some  limit  to  its  being 
kept  from  circulation  ;  and  what  limit  can  there  be,  except  that  the  time  during  which 
it  is  locked  up  must  be  reasonable  ?  But  what  is  or  is  not  reasonable  for  that  purpose, 
a  jury  must,  with  the  assistance  of  the  judge,  under  all  the  circumstances  of  the  par- 
ticular case,  determine."  Like  considerations  were  entertained  by  the  Court  of  the  Privy 
Council  in  the  case  of  MuUiek  v.  Radakissen,  9  Moore,  P.  C.  46,  28  Eng.  L.  &  Eq.  86, 
on  appeal  from  the  Supreme  Court  at  Calcutta.  In  this  case,  a  bill  of  exchange  was 
drawn  at  Calcutta,  on  the  16th  of  Febmary,  1848,  by  the  respondents,  on  Dent  &  Co., 
at  Hong  Kong,  payable  sixty  days  after  sight,  and  indorsed  by  the  respondents  to 
MuttyUHl  Seal  or  order.  MuttyloU  Seal,  in  consequence  of  the  depressed  state  of  the 
money  market  at  Calcutta  and  the  unsalableness  of  bills  on  China  at  that  time  at 
Calcutta,  kept  the  bill  for  five  months  and  nine  days,  and  then  sold  it  to  the  appellant, 
who  did  not  present  it  for  acceptance  at  Hong  Kong  till  the  24th  of  October  in  that 
year,  when  Dent  &  Co.  refused  to  accept  it.  It  was  held  that  the  presentation  of  the 
bill  for  acceptance  was  not  made  within  a  reasonable  time,  and  that  the  respondents, 
the  drawers,  were  discharged.  Baron  Parke,  pronouncing  the  judgment  of  the  court, 
said  :  "  The  court  (at  Calcutta)  assumed,  that  the  correct  principle  was  laid  down  fully 
in  the  cases  of  Mellish  v  Rawdon,  9  Bing.  416,  which  is  in  accordance  with  the  prior 
cases  of  Muilman  v.  D'Eguino,  2  H.  Bl.  565,  and  Fry  v.  Hill,  7  Taunt.  .397,  that  in 
determining  the  question  of  'reasonable  time '  for  presentment,  not  the  interests  of  the 
drawer  only,  but  those  of  the  holder,  must  be  taken  into  account;  that  the  reasonable 
time  ex|)ended  inputting  the  bill  into  circulation,  which  is  forthe  interest  of  the  holder, 
is  to  be  allowed  ;  and  that  the  bill  need  not  be  sent  for  acceptance  by  the  ver}-  earliest 
opportunity,  though  it  must  be  sent  without  improper  delay.  The  court,  in  acting 
upon  that  principle,  concluded  from  the  evidence  that  the  bill  was  improperly  detained 
for  a  portion  at  least  of  the  time  which  elapsed  between  the  16th  of  February,  1848, 
when  it  was  drawn,  and  the  26th  of  July,  when  it  was  indorsed  over  by  MuttyloU  Seal, 
the  then  holder,  to  the  plaintiff.  They  thought  that  the  evidence  proved,  that  for  the 
whole  of  that  time,  a  period  of  more  than  five  months,  bills  on  China  were  altogether 
unsalable  in  Calcutta  ;  that  such  was  the  permanent  and  regular  state  of  the  market; 
and  that  although,  if  there  was  a  reasonable  prospect  of  the  state  of  things  being  better 
in  a  short  time,  the  holder  would  have  had  a  right,  with  a  view  to  his  own  interests, 

(c)  Aymar  v.  Beers,  7  Cowen,  705. 


268  NOTES  AND   BILLS.  [CH.  Vm 

convenience  of  the  successive  holders  may  require,  (c?)  If  a  note 
payable  on  demand  was  intended  as  a  continuing  security,  and 
not  for  commercial  purposes,  this  is  a  circumstance  which  greatly 
extends  the  time  within  which  one  may  take  it  without  being 
made  subject  to  the  equities  of  dishonored  paper,  (e)  This  inten- 
tion may  sometimes  be  inferred  from  the  phraseology  of  the  note ; 
and  the  fact  that  it  bears  interest  has  sometimes  been  considered 
as  indicating  such  an  intention. (/)  A  note  transferred  after  it 
is  due  is  considered  as  a  note  payable  on  demand,  as  regards  the 
time  within  which  a  demand  must  be  made  in  order  to  charge 
the  indorser.(g') 

The  reasonableness  of  the  time  for  presentment  of  bills  ou 
sight,  and  of  bills  and  notes  payable  on  demand,  was  formerly 
thought  to  be  wholly  a  question  of  fact  for  the  determination  of 
the  jury ;  (A)  but  the  expediency  of  having  a  fixed  rule  of  law 

to  keep  the  bill  for  some  time,  he  had  no  such  right  when  there  was  no  hope  of  tlie 
amendment  of  that  state  of  things  ;  and  we  are  of  opinion,  that  the  evidence  fully  jus- 
tified this  conclusion  from  it,  and  that  the  court,  deciding  on  facts  as  a  jury,  were  per- 
fectly right.  Indeed,  we  should  not  have  reversed  their  judgment  on  a  matter  of  fact, 
unless  we  were  quite  satisfied  they  were  wrong,  their  knowledge  of  local  circumstances 
and  the  character  and  appearance  of  the  witnesses  enabling  them  to  form  a  more  cor- 
rect oijinioii  than  a  tribunal  of  appeal  in  this  country  possibly  could.  But  in  our  opin- 
ion they  drew  a  proj)er  inference  from  the  evidence  in  the  case." 

In  Straker  v.  Graham,  4  M.  &  W.  721,  where  a  bill  was  drawn  in  duplicate  at  Car- 
bonear,  in  Ninvfoundland,  on  the  12th  of  August,  upon  a  firm  in  England,  p.iyablo 
ninety  days  after  sight,  and  it  was  not  presented  for  acceptance  until  the  16th  of  No- 
vember, it  was  held,  in  absence  of  proof  to  explain  the  delay,  that  the  bill  was  not 
presented  within  a  reasonable  time. 

(d)  Goupy  V.  Harden,  7  Taunt.  159. 

(e)  Vreeland  v.  Hyde,  2  Hall,  429 

(/)  Baroiigh  v.  White,  4  B.  &  C.  32.5,  6  Dow.  &  R.  379  ;  Vreeland r.  Hyde,  supra; 
Wethey  v.  Andrews,  3  Hill,  582  ;  Lockwood  i-.  Crawford,  18  Conn.  361.  In  the  latter 
case,  Churcit,  C.  J.  tliought  the  fact  of  the  note's  bearing  interest  an  important  one,  na 
indicating  a  continuing  note.  But  the  nu're  circumstance  that  it  bears  interest  docs 
not  take  it  out  of  the  general  rule,  that  dishonor  is  to  be  presumed  afier  a  reasonable 
time.  Perry  v.  Green,  4  Harrison,  61.  Sec  also  Agawam  Bank  v.  Strever,  18  N.  Y. 
502,  513.  In  Weeks  v.  Pryor,  27  Barb.  79,  the  court  thought  it  evident,  from  the  fact 
that  a  note  payable  on  demand  bore  interest,  that  an  immediate  demand  of  payment 
was  not  contemplated  by  the  parties. 

{ij)  Van  Hoesen  v.  Van  Alstyne,  3  Wend.  75;  Sanborn  »•.  Southard.  25  Maine, 
409;  Branch  Bank  of  Montgomery  i;.  Gaffney,  9  Ala.  1.53;  Gray  v.  Bell,  3  Hich.  71  ; 
M'Kinncy  v.  Crawford,  8  S.  &  R.  351  ;  Brenzer  v.  Wightman,  7  Watt.s  &  S.  264  ;  Camp- 
bell V.  Carman,  1  Philad.  283;  Tyler  v.  Young,  30  Penn.  State,  143;  Beebe  v. 
Brooks,  12  Calif  .308. 

(/i)  Muilman  v.  D'Kguino,  2  H.  151.  .565;  Fry  v.  Hill.  7  Taunt.  397;  Goupy  v. 
Harden,   7  Taunt    159;    Shute  r.  Rubins,  Mooily  &   M.   133;    Hoar  v.  Da  Cosia, 


CH.  VIII.]  BONA   FIDE  HOLDER  OF  NEGOTIABLE   PAPER,  269 

ill  place  of  the  uncertain  and  contradictory  decisions  of  juries, 
in  a  matter  of  so  much  importance  in  mercantile  affairs,  has 
finally  led  to  the  adoption  of  the  principle  which  may  now  be  con- 
sidered a  settled  one,  —  that,  when  the  jury  has  determined  the 
facts  of  the  case,  tlie  reasonableness  of  the  time  is  a  question  of 
law  for  the  court  to  determine  or  to  direct  the  jury  upon,(i) 
Practically,  in  very  many  cases,  it  is  a  mixed  one  of  law  and 
fact,  to  be  decided  by  the  jury,  acting  under  the  direction  of  the 
judge,  upon  the  particular  circumstances  of  the  case.(y) 


2  Stra.  910;  Manwaring  v.  Harrison,  1  Stra.  508;  Straker  v.  Graham,  4  M.  &  W. 
721  ;  Hilton  v.  Shepherd,  6  East,  14,  note  ;  Hopes  v.  Alder,  6  East,  16,  note. 

(0  Moule  V.  Brown,  5  Scott,  694,  4  Bing.  N.  C.  266  ;  per  BulleT,  J.,  in  Tindal  v. 
Brown,  1  T.  R.  169 ;  Medcalf  ?;.  Hall,  3  Doug.  113  ;  Appleton  v.  Swcetapple,  3  Doug. 
137 ;  Darbishire  v.  Parker,  6  East,  3,  per  Lawrence,  J. ;  Vreeland  v  Hyde,  2  Hall, 
429;  Furman  v.  Haskin,  2  Caines,  369  ;  Sice  v.  Cunningham,  1  Cowen,  408;  Ay- 
mar  V.  Beers,  7  Cowen,  705  ;  Van  Hoesen  v.  Van  Alstyne,  3  Wend.  75  ;  Dennett  v. 
Wyman,  13  Vt.  485  ;  Sylvester  v.  Crapo,  15  Pick.  92,  per  Shaw,  C.  J.  In  Barbour 
V.  FuUerton,  36  Penn.  State,  105,  the  court,  though  admitting  the  general  rule,  that, 
where  the  facts  are,  undisputed,  what  is  a  reasonable  time  is  a  question  of  law,  were  of 
opinion  that  in  case  of  a  note  payable  on  demand,  made  in  another  State,  and  governed 
by  its  laws,  this  question  is  one  of  fact  for  the  jury,  under  proper  instructions  from  the 
court. 

(j)  In  Mellish  v.  Rawdon,  9  Bing.  416,  Tindal,  C.  J.,  delivering  the  judgment  of  the 
court,  said :  "  Whether  there  has  been  in  any  particular  case  reasonable  diligence  used, 
or  whetJier  unreasonable  delay  has  occurred,  is  a  mixed  question  of  law  and  fact,  to  be 
decided  by  the  jury,  acting  under  the  direction  of  the  judge,  upon  the  particular  cir- 
cumstances of  each  case."  On  a  similar  point  respecting  notice.  Lord  Mansfield,  in 
Tindal  v.  Brown,  1  T.  R.  167,  said  :  "  What  is  reasonable  notice  is  a  question  partly 
of  fact,  and  partly  of  law  ;  it  may  depend  in  some  measure  on  facts  ;  such  as  the  dis- 
tance at  which  the  parties  live,  the  course  of  the  post,  &c. ;  but  wherever  a  rule  can  be 
laid  down  with  respect  to  their  reasonableness,  that  should  be  decided  by  the  court,  and 
adhered  to  for  the  sake  of  certainty."  This  case  was  sent  back  to  the  jury,  on  nearly 
the  same  evidence  as  was  at  first  presented,  and  the  jury  having  again  returned  a  ver- 
dict contrary  to  the  direction  of  the  court,  the  court  again  set  it  aside,  and  ordered  a 
third  trial.  In  Wyman  v.  Adams,  12  Cush.  210,  214,  Shaw,  C  J.,  referring  to  the  last- 
mentioned  case,  said  :  "  This,  we  believe,  has  been  ever  since  considered  as  settling 
the  law  definitively,  that  what  is  reasonable  time  for  making  demand  on  the  promisor 
and  giving  notice  of  dishonor  to  the  indorser,  is  a  question  of  law.  But  this  rule  is 
practically  carried  into  effect,  by  stating  to  the  jury  what  is  rca.sonahle  time,  in  a  case 
where  the  evidence  is  clear,  certain,  and  uucontroverted,  and  by  setting  aside  their  ver- 
dict, if  it  is  manifest  that  they  decided  against  law,  in  not  conforming  the  verdict  to 
such  instructions.  But  where  the  promisor  has  no  fixed  place  of  abode,  or  where  he 
has  absconded  or  changed  his  residence,  it  is  a  very  ditfcrent  question  what  shall 
be  considered  due  and  reasonable  diligence  on  the  part  of  the  holder  in  searching 
or  inquiring  for  the  promisor  in  order  to  make  demand.  There,  in  the  language  of 
Lord  Mansfield,  '  no  rule  can  be  laid  down  ' ;  it  depends  on  a  variety  of  circumstances, 
f>  be  -"onsidered  by  the  jury,  under  proper  directions  by  the  court  as  to  the  nature 
23* 


270  NOTES   AKD   BILLS.  [CH.  ^^^. 

Another  thing  is,  that  actual  dishonor  may  take  place  at  any 
moment  after  the  paper  may  be  presented  and  demanded.  But 
this  dishonor,  accurately  speaking,  does  not  take  place,  or  at 
least  is  not  completed,  merely  by  refusal  to  pay,  unless  the  party 
subsequently  taking  the  paper  had  some  notice  or  knowledge  of 
this  demand  and  refusal. (^•) 

The  third  thing  we  have  to  say  is  this.  If  the  paper  be  de- 
manded and  refused  within  that  period  before  the  termination 
of  which  there  is  no  presumption  of  dishonor,  a  taker  after  such 
demand,  and  within  that  period,  having  no  notice  or  knowledge 
of  the  demand  or  refusal,  cannot  be  affected  by  it.(/)  For  exam- 
ple, suppose  a  note  on  demand  so  circumstanced  that  the  court 
would  say  the  lapse  of  one  month  is  not  sufficient  to  dishonor  it, 
and  the  lapse  of  two  montlis  is  sufficient,  ana  a  transferee  takes 
it  on  the  twenty-fifth  day  without  notice  or  knowledge  that  on 
the  twenty-fourth  day  it  had  been  demanded  and  refused.  "We 
should  say  that  the  law  would  allow  him  the  riglit  of  presuming 
non-dishonor  during  the  whole  of  that  month,  and  would  protect 
his  rights  accordingly. 

Paper  payable  at  a  time  certain  is  dishonored  by  mere  non- 
payment at  that  time;  but  if  payable  on  demand,  and  dishon- 
ored by  refusal,  the  question  may  arise,  what  constitutes  refusal. 

and  degree  of  the  diligence  required."  See  also  Barbour  v.  FuUerton,  36  Pcnn. 
State,  105. 

In  the  recent  case  of  Mullick  v.  Kadakissen,  9  Moore,  P.  C.  46,  28  Eng.  L.  &  Eq. 
86,  Baron  Parke,  pronouncing  the  judgment  of  the  court,  said,  that  when  there  is  no 
usage  of  trade  to  fix  the  time,  it  has  long  been  established  that  what  constitutes  a 
reasonable  time  is  a  mixed  question  of  law  and  fact  for  the  determination  of  the  court 
and  jury. 

(/c)  See  Bartrum  v.  Caddy,  9  A.  &  E.  275,  278,  per  Pattcson,  J.;  Cripps  v.  Davis, 
12  M.  &  W.  159,  165,  per  Parke,  B. 

(/J  So  even  a  payment  made  on  a  note  payable  on  demand  immediately  after  it  is 
signed,  and  not  indorsed  thereon,  would  not  bind  an  innocent  indorsee,  who  demands 
payment  within  a  reasonable  time.  In  Field  v.  Nickerson,  13  Mass.  131,  137,  Parker, 
C.  J.,  pronouncing  the  opinion  of  the  court,  said  :  "  So  we  think,  that  he  who  takes,  for 
a  valuable  consideration,  a  note  of  liand  negotiable  within  a  day  or  two  after  it  is 
Bigned  would  not  be  subject  to  the  claims  of  the  promisor  in  nature  of  set-off,  on  the 
princi|)lc  tliat  tlic  note  was  overdue  when  indorsed;  because  the  maker  gives  a  credit 
to  the  note  for  a  reasoiuible  time  after  it  is  signed;  and  if  lie  should  pay  it  immediately 
after,  leaving  the  note  assignable  in  the  hands  of  the  promisee,  without  any  indorsement 
thereon,  he  would  ])crhaps  be  holden  to  pay  it  again  to  the  indorsee;  fur  he  would  bo 
considered  as  promising  to  pay  the  contents  to  any  assignee  who  should,  within  a  rea- 
Bonable  time,  make  denutnd  of  payment."  Sec  also  American  Bank  v.  Jenncs^  2 
Met.  288;  Sacket  v.  Loomis,  4  Graj',  148. 


CH.  Vm.]    BONA  FIDE  HOLDER  OF  NEGOTIABLE  PAPER.        271 

We  should  say,  generally,  not  a  mere  delay  or  postponement  for 
good  reason,  which  does  not  amount  to  the  expression  of  an  in- 
tention not  to  pay.  As  if  one  should  say,  ''  I  supposed  you  were 
to  give  me  ten  days'  notice :  I  shall  certainly  be  ready  then  "  ; 
or,  "  I  think  that  is  paid,  as  I  have  an  offset ;  I  will  ascertain  in 
a  day  or  two,  if  you  will  let  the  note  lie  "  ;  and,  in  either  case, 
the  delay  is  given.  But  no  special  words  need  be  used  to  consti- 
tute refusal,  if  the  paper  is  demanded,  and  is  not  paid,  and  there 
are  no  words  which  make  the  non-payment  reconcilable  with  the 
purpose  of  payment  within  a  proper  time,  and  with  a  voluntary 
delay  by  the  holder  on  this  ground. 

Checks,  of  which  we  speak  fully  elsewhere,  are  a  peculiar  instru- 
ment, and  in  this  connection  we  need  only  remark,  that  they  are 
not  precisely  bills,  but  drafts  on  demand.  Neither  sight  nor  de- 
mand is  expressed  on  them  ;  and  the  present  form  in  general  use 
m  this  country  was  in  use  also  m  England  long  ago.  They  are 
sometimes  written  payable  on  time,(m)  or  are  post-dated,  which 
has  the  same  effect. (w)  When  not  so  written,  they  are  payable 
on  demand ;  but  differ  from  bills  on  sight  or  notes  on  demand  in 
this,  — that  they  are  not  intended  for  circulation,  and  are  consid- 
ered dishonored  at  a  much  earlier  period.  That  is,  it  is  consid- 
ered reasonable  to  require  their  presentation  much  sooner. (o) 
But,  on  the  other  hand,  there  is  no  such  strict  rule  requiring  the 
prompt  presentment  of  checks  as  there  is  with  respect  to  notes 
and  bills  of  exchange  payable  at  a  time  certain. (7?)  After  a  rea- 
sonable time  has  passed,  they  will  be  considered  as  dishonored ; 
and  what  this  time  is  must  depend  not  only  upon  the  nature  of 
the  instrument,  but  also  upon  the  circumstances  attending  the 
particular  case.  (7)  Tlie  mere  fact  that  one  takes  a  check  six 
days  after  its  date  does  not  necessarily  subject  him  to  the  equi- 
ties existing  against  it  as  a  dishonored  paper ;  (r)  though  this  cir- 
cumstance is  a  proper  matter  of  consideration  in  determining 
whether  the  party  thus  taking  the  check  acted  in  good  faith  and 

(m)  Westminster  Bank  v.  Wheaton,  4  R.  I.  30. 

(«)  Mutter  of  Brown,  2  Story,  .502,  512.  Post-dated  checks  are  sometimes  consid- 
ered payable,  not  as  at  a  day  certain,  but  on  demand  on  or  after  their  date.  Gough  j» 
Staats,  13  Wend.  549  ;  Mohawk  Bank  v.  Broderick,  id.  133. 

(0)  Per  Parke,  B.  in  Brooks  v.  Mitchell,  9  M.  &  W.  15. 

(p)  Per  Maule,  J.,  Serrell  v.  Derbyshire  Railway  Co.,  9  C.  B.  811. 

{q)  Rothschild  v.  Corney,  9  B.  &  C.  388,  per  Lord  lenterden. 

(r)  RothschiM  v.  Corney,  supra. 


272  NOTES   AND    BILLS.  [CH.  VHI. 

with  due  caution,  which  may  be  the  real  question  presented ;  (5) 
or  more  accurately  the  staleness  of  the  check  and  the  want  of 
caution  in  taking  it  are  of  importance  only  in  connection  with 
the  inquiry  whether  the  holder  had  any  knowledge  of  any  in- 
firmity in  the  title  of  the  person  from  whom  he  took  it.(^)  No 
degree  of  staleness  is  fixed  upon  by  the  law  as  conclusive  evi- 
dence of  bad  fuitli  or  fraud  in  the  party  taking  the  check. 

As  one  who  ]jays  out  his  check  may  be  supposed  to  deliver  it 
with  the  expectation  that  it  will  be  at  once  converted  into  money, 
there  is  perhaps  no  equity  whatever  in  favor  of  the  drawer,  unless 
for  a  loss  by  negligence  or  default  of  tlie  holder ;  but  any  holder 


(s)   Rothschild  v.  Corney,  9  B.  &  C.  388,  per  Lord  Tenterden. 

(t)  Per  Lord  Brouijliam,  Bank,  of  Bengal  v.  Fagan,  7  Moore,  P.  C.  72.  A  doctrine 
to  the  contrary  at  one  time  prevailed,  and  was  the  ground  of  the  decision  in  Down  v. 
Hailing,  4  B.  &  C  330.  In  this  case,  the  payee  of  a  check  for  £  50  casually  lost  it ; 
and  five  days  after  its  date  a  woman  of  respectable  appearance  bought  goods  of  the 
defendants,  wholesale  linen-drapers  and  haberdashers,  to  the  amount  of  .£6  10s.,  and 
gave  them  this  check  ;  they  asked  her  name  and  wrote  it  down,  and  gave  her  the 
change ;  the  next  day  they  presented  it  for  payment,  and  the  bankers  paid  it.  Two 
days  afterwards,  the  payee  gave  notice  to  the  bankers  not  to  pay  it,  but,  finding  it  had 
bo2n  paid,  called  on  the  defendants,  and  brought  this  action  for  money  had  and  re- 
ceived. Abbott,  C.  J.  left  it  to  the  jury,  whether  the  defendants  had  not  taken  the  check 
under  circumstances  that  should  have  excited  the  suspicion  of  a  prudent  man,  and  they 
found  for  the  defendants.  On  a  motion  for  a  new  trial,  the  court  were  satisfied  that,  if 
this  was  to  be  considered  as  lost  by  the  plaintiff  or  stolen  from  him,  the  defendant, 
who  took  it  so  long  after  its  date,  must  be  considered  as  having  taken  it  at  his  peril ; 
they  however  doubted  whether  the  plaintiff  should  not  have  given  some  evidence  of 
losing  the  check  ;  but  on  further  consideration  of  that  jjoint,  they  thought  a  person 
who  took  such  a  check  under  such  circumstances  was  bound  to  show  that  the  party 
from  whom  he  took  it  had  good  title  to  it ;  and  as  to  proof  of  loss,  it  was  remarked 
that  the  party  losing  it  might  in  many  instances  be  unable  to  prove  such  loss. 

Where  the  drawer  of  a  check  did  not  issue  it  until  nine  months  after  its  date,  it  was 
held,  in  a  suit  against  him  by  an  indorsee  for  a  valuable  consideration,  that  the  check 
was  not  subject  to  the  equities  existing  against  it  in  the  hands  of  the  payee,  by  reason  of 
the  indorsee's  taking  it  so  many  months  after  it  was  dated.  Lord  Keinjon  admitted  that 
it  was  to  be  considered  as  a  rule,  that  the  person  who  takes  a  I)ill  after  it  is  due  is  subject 
to  the  same  equity  as  the  party  from  whom  he  took  it,  though  the  bill  did  not  appear 
upon  its  face  to  have  been  dishonored  ;  and  he  thought  there  was  no  distinction  in  this 
respect  between  checks  upon  bankers  and  bills  of  exchange  ;  but  as  the  defendant  had 
not  issued  this  check  until  nine  months  after  it  was  dated,  he  thought  it  was  imt  com- 
petent for  him  to  object  to  the  time  when  the  plaintid"  took  it.  Boelim  v.  Sterling,  7 
T.  11.  42.3. 

Where  a  bank  paid  a  check  more  than  a  year  after  it  was  drawn,  out  of  its  own  funds, 
on  the  credit  of  the  drawer,  who  had  paid  the  amount  of  it  to  tlie  payee  before  it 
became  j>nyablc,  and  without  giving  notice  of  the  payment  to  the  bank,  it  was  held 
that  the  drawer  was  not  liable  to  the  bank  for  the  amount  so  paid.  Lancaster  Bank 
V    Woodward,  18  I'enn.  State,  357. 


CH.  VIII.]  BONA  FIDE  HOLDER   OF  NEGOTIABLE   PAPER.  27o 

of  his  check  may  always  chiim  of  him  the  full  amount. (w)  Any 
exception  to  tliis  rule  must  arise  from  tlie  peculiar  circumstances 
of  the  case,  and  from  evidence  that  the  holder  took  it  with  knowl 
edge  that  its  payment  might  be  resisted  by  the  drawer,  in  whole 
or  in  part,  on  good  grounds. (i;)  On  the  other  hand,  a  bank 
always  has  all  its  equities  and  defences  against  a  check,  unless  it 
be  certified  ;  and  then  it  is  as  an  accepted  bill.(z^)  The  excep- 
tions to  this  rule  also  must  arise  from  the  peculiar  circumstances 
of  the  case. 


(m)  Alexander  v.  Burchfield,  3  Scott,  N.  R.  555,  7  Man.  &  G.  1061  ;  Robinson 
i>.  Hiiwksfoid,  9  Q.  B.  52 ;  Serle  v.  Norton,  2  Moody  &  R.  401  ;  Murray  v.  Judah. 
6  Cowcn,  490  ;  Little  v.  Phenix  Bank,  2  Hill,  426 ;  Daniels  v.  Kyle,  1  Kelly,  304, 
3  Ga.  245;  Shrieve  v.  Duckham,  1  Littell,  194;  Flemming  v.  Denny,  2  Pliilad. 
Ill,  13  Leg.  Intelligencer,  UO;  Pack  v.  Thomas,  13  Smedcs  &  M.  11;  East 
River  Bank  v.  Gedney,  4  E.  D.  Smith,  582;  Smith  v.  Janes,  20  Wend.  192  ;  Matter 
of  Brown,  2  Story,  516  ;  Morrison  v.  Bailey,  5  Ohio  State,  13,  per  Beutly,  J  ;  Tryon 
I'.  Oxley,  3  Iowa,  289  ;  Foster  v.  Paulk,  41  Maine,  425  ;  Harbeck  v.  Craft,  4  Duer, 
122  ;  Hoyt  v.  Seeley,  18  Conn.  353. 

In  Alexander  v.  Burclifield,  sw/jra,  Pa^fson,  J.  said:  "As  between  the  drawer  of 
a  check  and  the  holder,  if  presentment  is  deferred  to  such  a  time  that  inconvenience 
has  been  sustained,  the  time  may  be  deemed  unreasonable  ;  but  if  none  has  resulted,  I 
see  nothing  unreasonable  in  a  presentment,  I  should  even  say,  at  any  time  within  six 
years."  A  similar  statement  was  made  by  Creswell,  J.  in  Laws  ;;.  Rand,  3  C.  B. 
N.  s.  442.  In  Mullick  v.  Radakissen,  9  Moore,  P.  C.  46,  28  Eng.  L.  &  Eq.  86, 
Parke,  B.  said  that  a  check  "  is  more  like  an  appropriation  of  what  is  treated  as 
ready  money  in  the  hands  of  the  banker,  and  in  giving  the  order  to  appropriate  to  a 
creditor,  the  person  giving  the  check  must  be  considered  as,  the  person  primarily 
liable  to  pay,  who  orders  his  debt  to  be  paid  at  a  particular  place,  and  as  being 
much  in  the  same  position  as  the  maker  of  a  promissory  note,  or  the  acceptor  of  a  bill 
of  exchange,  payable  at  a  particular  place,  and  not  elsewhere,  who  has  no  right  to 
insist  on  inmiediate  presentment  at  tlwt  place."  In  a  few  cases,  the  drawer  of  a  check 
payable  at  a  future  day  has  been  considered  conditionally  liable,  and  discharged  for 
want  of  due  diligence  in  making  presentment  and  giving  notice  of  dishonor,  though 
he  has  suffered  no  loss.  Bradley  v.  Delaplaine,  5  Harring  305  ;  Glenn  v.  Noble,  I 
Blackf.  104      This  doctrine,  however,  cannot  be  supported  on  authority  or  principle. 

(»)  Anderson  v.  Busteed,  5  Duer,  485.     See  also  Thompson  v.  Hale,  6  Pick.  259. 

(w)  Robson  V.  Bennett,  2  Taunt.  388;  Barnet  v.  Smith,  10  Foster,  256  ;  Willets 
V.  Phoenix  Bank,  2  Duer,  121  ;  Farmers'  &  Mechanics'  Bank  of  Kent  Co.  v  Butchers' 
&  Drovers'  Bank,  4  Duer,  219;  9.  c.  in  Court  of  Appeals,  4  Kern.  623.  See  also 
Mussey  v.  Eagle  Bank,  9  Met.  306  ;  Hern  v.  Nichols,  1  Salk.  289  ;  Bank  of  Republic 
V.  Baxter,  31  Vt.  101. 

After  a  bank  has  certified  a  check,  it  can  no  more  impute  delay  to  the  holder  in  pre- 
senting the  check  for  payment,  than  it  can  to  the  holder  of  one  of  its  own  notes  ;  for 
the  bank  then  becomes  the  principal  debtor,  and  can  set  up  no  equities  against  the 
cheek.  Willet  v.  Phoenix  Bank,  2  Duer,  121.  If  the  drawer  of  a  check  procures  it  to 
be  certified  by  means  of  fraudulent  representations,  the  bank  may  reclaim  the  ciieck  or 
the  money  represented  by  it,  unless  it  has  previously  been  transferred  or  paid  to  one 
who  has  no  notice  of  such  fraud.     Bank  of  the  Republic  v,  Baxter,  31  Vt.  101. 

Vol.  I.— S 


274  NOTES   AND    BILLS.  [CH.  Vm. 

Bank-bills  are  never  dishonored  by  mere  lapse  of  time.  They 
are  usually  protected  by  statute,  even  against  the  statute  of  limi- 
tations, and  are  good  as  against  the  bank  which  issues  them  at  any 
subsequent  period.  Even  if  the  bank  be  broken,  and  the  bills 
have  been  demanded  and  refused,  they  are  still  salable,  and  very 
frequently  sold  and  resold ;  and  the  purchaser  acquires  all  the 
rights  of  a  holder  as  against  the  bank  or  upon  its  assets. 

What  rights  the  holder  has  against  the  party  from  whom  he  re- 
ceived old  bills,  or  bills  of  insolvent  banks,  will  be  considered  in 
the  chapter  on  Payment  by  Bill  or  Note. 


SECTION    III. 

AGAINST  WHAT  DEFENCES  A  BONA  FIDE  HOLDER  IS  PROTECTED. 

The  subject  of  this  section  might  have  been  said,  quite  as  ac- 
curately, to  be  the  peculiar  privileges  or  rights  which  a  bona  fide 
holder  of  negotiable  paper  has,  although  his  transferrer  did  not 
himself  possess  them.  In  the  first  place  it  should  be  remarked, 
that  in  this  sense,  and  for  this  purpose,  no  one  is  a  bona  fide 
holder  who  did  not  take  the  paper  for  value  before  its  dishonor; 
that  is,  before  its  maturity,  if  payable  at  a  time  certain  ;  or  within 
a  reasonable  time,  if  payable  on  demand ;  or  before  actual  de- 
mand and  refusal,  and  notice  or  knowledge  thereof. 

For  every  holder  of  negotiable  paper  who  takes  it  after  dis- 
honor takes  it  subject  to  all  equities ;  or  rather,  to  all  defences 
which  could  have  been  made  to  the  paper  if  it  had  not  been 
transferred  to  him. 

It  was  a  rule  of  the  court  of  chancery,  coeval  with  the  intro- 
duction of  uses  and  trusts,  that  a  purchaser  of  property  in  good 
faith,  for  a  valuable  consideration  and  without  notice  of  any 
equities  or  trusts  to  which  it  was  subject  in  the  hands  of  his 
vendor,  took  the  property  free  and  discharged  from  all  these  equi- 
ties and  trusts.  This  rule,  however,  was  strictly  confined  to 
chosea  in  possession  ;  because  choses  in  action  were  not  legally 
assignable.  Hence  the  assignee  of  a  chose  in  action  had  no  legal 
title,  but  only  an  equitable  title  ;  and  when  his  equitable  title 
comes  into  conflict  with  the  equities  of  other  parties,  the  univer- 
sal rule  of  chancery  prevailed,  by  force  of  which,  as  between 


CH.  VIII.]  BONA    FIDE    HOLDER    OF   NEGOTIABLE   PAPER.  275 

equal  equities,  that  which  is  prior  in  time  is  prior  in  right.  Now 
negotiable  paper  is  in  tliis  respect  an  exception  to  the  law  of 
choses  in  action.  It  may  be  assigned  by  indorsement  or  deliv- 
ery, and  the  assignee  acquires  a  legal  title  as  complete  as  the 
assignee  of  choses  in  possession.  Thus,  the  reason  for  excluding 
from  the  rule  negotiable  paper  wholly  failed ;  and  in  addition,  its 
peculiar  nature  and  function  absolutely  required  that  a  bona  fide 
holder  should  be  fully  protected.  Accordingly,  courts  of  law. 
have  for  a  long  period  in  England,  and  always  here,  extended  to 
the  bona  fide  holder  of  negotiable  paper  a  similar  protection  to 
that  which  chancery  gave  to  the  assignee  of  choses  in  possef^sion. 
For  the  application  of  this  important  rule,  it  must  be  remem- 
bered that  no  holder  is  entitled  to  its  benefit  who  has  not  a  com- 
plete legal  title  to  the  paper ;  and  we  shall  presently  see  how 
many  transfers  of  negotiable  paper  this  necessity  of  legal  title 
opens  to  all  equitable  defences. 

As  no  one  is  a  bona  fide  holder  in  this  sense  who  has  notice 
of  a  defence  against  the  paper,  no  one  who  takes  it  after  dishonor 
is  such  b'ma  fide  holder,  because  the  dishonor  itself  is  notice  to 
him  that  there  is  some  defect  or  defence.  Hence  the  rule,  that 
one  who  takes  paper  for  value  after  dishonor  is  open  to  all 
equitable  defences,  (re) 

It  is  certain  that,  by  the  general  course  and  weight  of  the  au- 
thorities, one  who  takes  paper  after  dishonor  is  subject  to  all  equi- 
ties ;  and  he  who  takes  it  in  good  faith  for  value  before  dishonor 
is  subject  to  no  equities.  Wliat  these  equities  are,  we  shall  con- 
sider fully  hereafter  in  the  chapter  on  Defences. 

The  bona  fide  holder  of  negotiable  paper  before  dishonor  is  not 
protected  against  those  defences  which  go  to  the  essence  of  the 
paper,  and  either  by  common  law  or  statute  annul  and  avoid  the 
contract,  or  which  interfere  with  and  prevent  his  acquiring  a  le- 
gal title  to  the  paper. (^)     Thus  a  person  whose  name  is  forged, (z) 

-—    ■      '  ■  ■     ■  .  -   .  ,  . .  ,  i». 

(x)  Brown  v.  Davies,  3  T.  R.  80,  per  Buller,  J. ;  Beck  i'.  Roblej^  1  H.  Bl.  89,  note  a  ; 
Little  V.  Dunlop,  Busbee,  40 ;  Williams  v.  Nicholson,  25  Ga.  560 ;  Howard  v.  Ames, 
3  Met.  308  ;  Mackay  v.  Holland,  4  Met.  69  ;  Potter  v.  Tyler,  2  Met.  58 ;  M'Neill  v. 
M'Donald,  1  Hill,  S.  Car.  1  ;  Mosteller  v.  Bost,  7  Ired.  Eq.  39 ;  Connery  v.  Kendall, 
5  La.  Ann.  515;  Sawyer  v.  Hoovey,  5  La.  Ann.  153;  Lancaster  Bank  v.  Wood- 
ward, 18  Penn.  State,  357  ;  Clay  v.  Cottrell,  18  Penn.  State,  408  ;  Baker  v.  Wheaton, 
5  Mass.  509  ;  Bond  v.  Fitzpatrick,  4  Gray,  89. 

(y)  See  supra,  pp.  217,  218. 

\z)  Canal  Bank  v.  Bank  of  Albany,  1  Hill,  287. 


27o  NOTES   AND   BILLS.  [CH,  VHI. 

or  whose  nol8  is  materially  altered, (a)  is  never  liable  to  tlie  par- 
ties who  took  the  paper  innocently  and  for  value  on  the  credit  of 
his  name ;  unless  his  own  default  was  a  cause  of  the  forgery  or 
alteration, (6)  or  of  the  taking  by  the  holder,  in  the  belief  that 
the  paper  was  genuine.  So,  wherever  a  note  tainted  with  usury 
is  thereby  annulled,  it  has  no  force  between  any  subsequent  par- 
ties, (c)  And  if  the  paper  be  illegal  on  any  ground  which  makes 
it  null  and  void  as  between  the  original  parties,  it  is  equally  void 
in  the  hands  of  subsequent  parties. (t/)  A  distinction  may  per- 
haps be  taken  between  notes  obtained  by  fraud  and  those  ob- 
tained by  force  or  duress.  In  the  former  case,  we  should  say 
that  the  defrauded  party  would  generally  be  liable  to  abonajide 
holder.  But  a  note  or  bill  obtained  by  duress  might  not  be  avail- 
able in  any  hands  against  the  party  so  compelled  ;  and  if  the  note 
were  a  good  note,  and  a  subsequent  party  indorsed  it  by  duress, 
he  would  not  be  bound  to  any  one  ;  but  a  subsequent  indorsee, 
wiio  indorsed  it  over  for  value,  would  be  bound  to  his  own  in- 
dorsee, or  to  those  deriving  title  from  him.  But  we  are  not  awaro 
that  this  question  has  been  determined  by  authority. (e) 

In  the  next  place,  a  bona  fide  holder  is  not  protected  against 
the  defence  of  incapacity,  if  that  be  complete,  however  it  be 
created.      Thus  an  infant,(/)   or  married  woman, (g*)   or  luna- 

(a)  Master  v.  Miller,  4  T.  R.  320 ;  Woodworth  i;.  Bank  of  America,  19  Johns.  391  ; 
Clatc  V.  Small,  17  Wend.  238  ;  Nazro  v.  Fuller,  24  Wend.  374  ;  Bruce  r.  Westcott, 
3  Barb.  374.     See  Li.sle  v.  Rogers,  18  B.  Mon.  .528  ;  Bumpass  j'.  Timms,  3  Snecd,  459. 

(h)  As  where  a  blank  is  carelessly  left.  See  supra,  pp.  109-113,  115;  Isnard  r. 
Torres,  10  La.  Ann.  103. 

(c)  Kamsdell  v.  Morgan,  16  Wend.  574;  Keutgen  v.  Parks,  2  Sandf.  60;  Clark  i;. 
Loomis,  5  Duer,  468.  In  Hall  v.  Wilson,  16  Barb.  548,  it  was  held  that  the  discount 
or  purchase  of  a  stolen  note  at  a  greater  discount  than  the  legal  rate  renders  the  trans- 
action usurious  and  the  note  void,  notwithstanding  the  transaction  is  in  fonn  a  purchase 
of  the  note  of  a  person  other  than  the  maker,  who  represents  it  to  be  a  business  note 
and  valid.  The  note  in  this  case  was  for  $  120,  payable  to  A  or  bearer.  It  was  stolen 
by  a  laborer,  and  transferred  to  B  for  $  1 1 5,  who  transferred  it  before  maturity  to  the 
jihiintitr.     Held,  that  the  plaintiff  could  not  recover. 

(d)  See  supra,  p.  214.     Weed  v.  Bond,  21  Ga.  195. 

(c)  In  Duncan  v.  Scott,  I  Camp.  100,  the  action  was  brought  by  the  indorsee  of  a 
bill  against  the  drawer.  It  was  held,  that  if  it  appeared  that  the  defendant  drew  with- 
out consjilcration  and  under  duress,  it  was  incuml)ent  on  the  plaintiff  to  prove  that  ho 
gave  value  for  it,  although  it  was  indorsed  before  duo.  This  case  seems  to  place 
duress  on  the  same  footing  as  fraud,  in  which  case,  as  we  have  seen,  a  bona  fide  holder 
may  recover. 

(/)  See  guprn,  p.  67,  note  /;  p.  69,  note  k. 

(g)  Sec  supra,  p.  79. 


CH.  Vm.]    BONA  FIDE  HOLDER  OF  NEGOTIABLE  PAPER.        27T 

tic,(A)  or  spendthrift  under  guardianship,  would  not  be  held  by 
his  signature,  to  any  person,  however  innocently  he  became  the 
holder. 

The  same  rule  must  apply  to  the  case  of  a  supposed  agency, 
without  any  real  or  sufficient  authority.  For  if  A  signs  paper  as 
the  agent  of  B,  B  does  not  sign  it,  nor  can  he  be  affected  with 
any  of  the  liabilities  of  signature,  unless  A  was  his  agent,  either 
on  the  ground  that  he  had  actual  authority  from  B,  or  that  B, 
without  giving  this  authority,  had  so  spoken  or  acted  as  to  justify 
the  holder,  or  some  one  from  whom  he  derives  title,  in  the  belief 
that  B  had  given  A  this  authority.  For,  as  we  have  already  seen, 
A  would  be  equally  the  agent  of  B  in  law,  on  eitlier  of  these 
grounds,  (i) 

Eitlier  of  these  incapacities,  or  indeed  any  other,  may  operate 
against  the  claim  of  the  holder  in  either  of  two  ways.  If  the 
incapacity  attended  the  making  of  the  note,  then  the  infant,  or 
lunatic,  or  married  person,  or  person  under  guardianship,  or  un- 
authorizing  principal,  will  not  be  held ;  but  subsequent  parties 
who  are  not  incapacitated  may  be  held  to  a  bona  fide  indorsee 
who  is  subsequent  to  them.(y)  On  the  other  hand,  if  the  paper 
is  free  from  all  objection  of  this  kind  until  tlie  last  indorsement, 
and  tliat  is  tainted  by  any  such  incapacity,  the  holder  acquires  no 
legal  title,  and  no  rights  to  the  paper  or  against  any  parties  upon 
the  paper. 

^  There  is  another  broad  distinction  in  respect  to  the  riglits  of 
the  bona  fide  taker,  which  should  be  distinctly  apprehended.  It 
is  this.  He  receives  at  his  own  peril  all  negotiable  paper  which 
is  assigned  to  him  by  written  transfer,  and  cannot  be  assigned  to 
him  by  delivery  only.  Whereas  lie  is  generally  protected  as  the 
holder  of  paper  transferable  by  delivery.  Thus,  one  steals  or 
finds  a  note  negotiable  by  indorsement,  and  forges  the  indorse- 
ment ;  now  the  holder  by  this  title  can  make  no  claim  against  any 
one,  because  the  written  transfer  confers  no  title  upon  him.  And 
this  is  true  if  the  finder  or  thief  happened  to  have  the  same  name 


(h)  See  supra,  p.  150,  note  p. 

'i)  See  Weathered  v.  Smith,  9  Texas,  622  ;  and  supra,  pp.  118  -  120. 

(j)  In  Erwin  v.  Downs,  15  N.  Y.  575,  a  note  was  made  by  two  married  women,  and 
indorsed  by  the  defendant  for  their  accommodation.  It  was  held  that  the  defendant 
was  liable  to  a  bona  fide  holder,  although  he  knew  at  the  time  that  the  makers  were 
married  women. 

VOL.  I.  24 


278  NOTES   AND   BILLS.  [CH.  VIIL 

vritli  the  previous  payee  or  indorsee,  and  therefore  wrote  his  own 
name  upon  the  paper,  because  the  question  always  is,  Had  the 
indorser  the  legal  power  and  right  to  transfer  the  paper  by  his 
indorsement  ?  for  if  not,  the  holder  derives  no  title  from  his  in- 
dorsement. 

It  may  be  well  to  remark,  that  although  negotiable  paper  pay- 
able to  order  is  not  transferable  by  delivery  only,  but  becomes 
so  transferable  by  an  indorsement  payable  to  bearer,  or  by  an 
indorsement  in  blank,  yet  a  bona  fide  holder  of  such  paper  by 
delivery  only  is  protected  against  everything  subsequent  to  the 
delivery  of  the  paper,  if  it  is  afterwards  indorsed  to  him,  the  in- 
dorsement relating  back  to  the  time  of  delivery,  as  to  any  equity 
outside  of  the  note  itself,  (/r) 

But  if  the  paper  is  originally  made  negotiable  by  delivery,  or 
becomes  so  by  indorsement  in  blank,  then  it  is  in  the  power  of 
any  party,  however  wrongful  his  possession,  to  do  all  that  is  ne- 
cessary to  transfer  the  property  ;  for  delivery  is  of  itself  suffi- 
cient. Hence  the  holder  takes  now  only  the  risk  of  his  own  hon- 
esty;  for  although  his  transferrer  had  himself  only  possession, 
and  would  have  made  no  title  whatever  as  against  any  prior 
party,  the  paper  is  nevertheless  so  far  like  money  in  his  hands, 
that  his  innocent  transferee  for  value  acquires  full  property  in  it, 
and  all  the  rights  incidental  to  this  property. (Z) 

If  A  holds  paper  indorsed  to  him,  and  B  steals  or  finds  it  and 
forges  A's  indorsement  to  himself,  and  then  indorses  it  for  value 
to  C,  C  to  D,  D  to  E,  &c.,  each  of  these  parties  has  a  valid  claim 
on  B,  and  on  all  prior  parties  as  far  back  as  B ;  but  no  one  of 
them  has  any  claim  against  A,  the  original  owner,  or  any  party 
before  B.  The  true  owner  has  never  lost  his  projjcrty  in  the 
paper,  but  may  still  enforce  his  rights  under  it,  in  tlic  manner 
prescribed  for  a  lost  note,  against  all  who  were  parties  wlien  he 
lost  it.(wj) 

It  should  be  added,  that  if  paper  properly  assignable  only  by 
indorsement  be  delivered  without  indorsement,  the  transferee 
has  l)ut  an  equitable  title.  He  may  have,  however,  a  right  to  a 
legal  title,  and  therefore  to  an  indorsement,  if  this  be  necessary 

(k)  Iliinj,'er  v.  Cary,  1  Met.  .369  The  court  appear  to  limit  the  rule  to  \he  case  of 
an  equity  outside  of  tlic  note  itself. 

(/)  Caruth  v.  Tliompson,  16  B.  Men.  572. 
{m)  Sec  supra. 


CH.  VIII.]         BONA   FIDE   HOLDER   OF   NEGOTIABLE   PAPER.  27? 

to  make  his  title  legal ;  and  a  court  of  equity  would  compel  such 
indorsement.  And  we  should  say  that  the  indorsee  would  then 
have  the  same  rights  and  the  same  protection  as  if  the  indorse- 
ment had  been  made  at  the  time  of  the  assignment ;  because  it 
would  relate  back  to  that  time,  as  it  is  given  now  only  because  it 
ought  to  have  been  given  then.  Tiic  absence  of  indorsement  is 
a  merely  technical  objection  ;  for  the  actual  transfer  for  value 
passes  the  property  in  tlie  paper  substantially,  and  the  indorse- 
ment is  needed  only  to  make  that  transfer  formal. (m) 

It  will  follow  from  what  has  been  already  said,  that  if  a  bona 
fide  holder  has  acquired  a  perfect  legal  title,  and  the  instrument 
is  not  made_.void  bj  statute,  and  the  parties  to  it  are  under  no 
personal  disability,  he  holds  the  paper  subject  to  very  few,  and 
we  might  almost  say  to  no  defences  whatever.  Thus,  it  is  no 
sufficient  defence  against  him,  tliat  there  was  no  original  con- 
sideration ;  (o)  or  that  the  consideration  has  failed ;  [p)  or  that 
the  consideration  was  illegal,  as  where  the  note  was  given  for 
liquors  sold  contrary  to  law  ;  {q)  or  on  an  agreement  not  to  fur- 
ther prosecute  the  maker  on  a  complaint  for  adultery  with  the 
wife  of  the  payee  ;  (r)  or  for  procuring  the  legislature  to  pardon 
a  convict ;  [s)  or  that  the  note  was  given  as  an  escrow  ;  {t)  or  that 
the  indorsement  grew  out  of  an  illegal  transaction,  or  was  ob- 
tained by  fraud ;  [ii)  or  that  the  note  was  obtained  by  fraud  or 


(n)  See  supra,  note  k. 

(o)  See  p  186,  note/;  Martin  v.  Ilainilton,  5  Harring.  Del.  314. 

(p)  See  p.  188,  note  g. 

{(])  Most  of  the  statutes  against  selling  liquors  provide  that  the  note  shall  be  void 
between  the  original  parties,  but  valid  in  the  hands  of  a  bona  fide  holder  without  notice 
The  Massacliusetts  act  provides  that  such  notes  "  shall  be  void  against  all  persong 
holding  the  same  with  notice  of  such  illegal  consideration,  either  direct  or  implied  by 
law."  Under  this  statute  it  has  been  held  that,  if  the  defendant  shows  that  a  note  was 
given  for  liquor,  the  plaintiff'  must  prove  that  he  took  it  without  notice.  Holden  v. 
Cosgrove,  Suff()lk,  Nov.  1858;  Sistermans  v.  Field,  Bristol,  Oct.  1858;  Barnard  v. 
Flint,  Berkshire,  1860.  And  see  Paton  v.  Coit,  5  Mich.  505  ;  Wyat  v.  Campbell, 
Moody  &  M.  80.  See  also,  generally,  Doe  v.  Burnham,  11  Foster,  426;  Johnson  v. 
Meeker,  1  Wis.  436  ;  Norris  v.  Langlcy,  19  N.  H.  423. 

(r)  Clark  v.  Bicker,  14  N.  H.  44. 

(s)  Meadow  v.  Bird,  22  Ga.  246. 

{t)  Vallett  V.  Parker,  6  Wend.  615. 

\u)  Humphrey  v.  Clark,  27  Conn.  381.  So,  if  a  party  makes  or  indorses  a  note,  for 
the  purjiose  of  its  being  used  in  a  particular  way,  he  takes  the  risk  of  its  being  used  in 
a  different  way,  and  cannot  refuse  to  pay  it  to  any  bonaJiJe  holder  into  whose  hands  it 
uiav  come.     Sweetser  v.  Frencn,  2  Cush.  309,  313. 


280  NOTES   AND   BILLS.  [CH.  Vm 

Stolen  ;  (v)  or  that  it  has  been  already  paid  to  the  original  payee, 
or  to  some  just  holder  ;  (iv)  or  that  the  instrument  was  delivered 
to  the  payee  in  blank,  with  authority  to  insert  a  certain  sum,  and 
that  he  has  inserted  a  much  larger  sum. (a;)  In  all  of  these  cases, 
the  courts  will  afford  no  remedy  to  the  payee,  or  to  any  subse- 
quent party  chargeable  with  notice  or  knowledge  of  the  defence ; 
but  the  paper  is  not  absolutely  void,  and  the  bona  fide  holder  is 
protected  against  all  these  defences. 


(»;)  Gould  v.  Segee,  5  Duer,  260  ;  Powers  v.  Ball,  27  Vt.  662  ;  Humphrey  v.  Clark, 
27  Conn.  381  ;  Kelly  v.  Smith,  1  Met.  Ky.  313  ;  Peacock  v.  Rhodes,  2  Doug.  633. 

(w)  See  supra,  p.  230,  note  w  ;  Griswold  v.  Davis,  31  Vt.  390. 

(x)  See  Putnam  v.  Sullivan,  4  Mass.  45  ;  Grig<;s  v.  Howe,  31  Barb.  100,  affirmed. 
Van  Duzer  v  Howe,  21  N.  Y.  531  ;  and  supra,  p.  115. 


CH.  IX.]  WHAT    CONSTITUTES   ACCEPTANXE.  283 


CHAPTER    IX. 

ACCEPTANCE. 

Acceptance  may  be  defined  to  be  an  agreement  to  coraj)ly  with 
the  request  contained  in  a  bill  of  exchange. (//)  It  may  be  ex- 
press or  implied ;  verbal  or  written ;  prior  to  drawing  the  bill  ; 
before  or  after  maturity  ;  absolute,  qualified,  or  conditional ;  by 
all  the  drawees,  by  a  part  of  them,  or  by  one  who  is  not  a  drawee, 
if  he  accepts  for  the  honor  of  the  drawer  or  any  indorser.  The 
acceptance  is  complete  when  in  exact  conformity  with  the  tenor 
of  the  bill ;  qualified,  wdien  it  is  an  agreement  to  pay  the  bill,  but 
at  a  different  time,  place,  or  in  a  different  manner  from  the  tenor 
thereof;  conditional,  when  the  obligation  of  payment  is  to  com- 
mence on  the  happening  of  some  event  or  circumstance.  We 
will  first  consider  what  constitutes  acceptance. 

SECTION   I. 

WHAT    CONSTITUTES    ACCEPTANCE. 

The  usual  manner  of  accepting  is  for  the  drawee  to  write 
across  the  face  of  the  bill,  frequently  in  red  ink,  the  word  "  Ac- 

iy)  "An  acceptance  is  an  engagement  to  pay  a  bill  according  to  the  tenor  of  the 
acceptance."  Bayley,  c.  6,  §  1  ;  Kyd,  c.  6  ;  Edwards,  p.  405.  "  The  act  by  which  the 
drawee  evinces  his  consent  to  comply  with,  and  be  bound  by,  the  request  contained  in 
the  bill  of  exchange  directed  to  him.  or,  in  other  words,  it  is  an  agreement  to  pay  the 
bill  when  due."  Chitty,  p.  280.  "An  assent  and  agreement  to  comply  with  the  re- 
quest and  order  contained  in  the  bill,  or,  in  other  words,  it  is  an  assent  and  agreement 
to  pay  the  bill,  according  to  the  tenor  of  the  acceptance,  when  due."  Story,  §  238. 
"  An  engagement  to  pay  the  hill  when  due."  Lawrence,  J.,  Clarke  v.  Cock,  4  East,  57, 
72.  "  An  engagement  of  the  one  party  acceding  to  the  proposition  of  the  other." 
Bayley,  J.,  Jcune  v.  Ward,  1  B.  &  Aid.  653,  659.  "  An  engagement  by  the  drawee  to 
pay  the  bill  when  due  in  money."  Byles,  p.  142.  The  objections  to  this  last  defini- 
tion are,  that  an  acceptance  may  be  by  a  person  other  than  the  drawee,  as  in  the  case 
of  an  acceptor  for  honor  ;  that  the  words  "  when  due"  are  hardly  correct,  as  an  accept- 
ance after  maturity  is  valid  ;  and  that  "  in  money  "  is  surplusage,  because,  a  bill  of 
exchange  being  a  written  order  for  the  payment  of  money,  an  engagement  to  pay  the 
bill  mast  be  to  pay  in  money,  for  a  bill  not  payable  in  money  is  not  a  bill  of  exchange. 
24* 


282  NOTES   AND   BILLS.  [CH.  IX. 

cepted,"  and  sign  his  name  to  this.  It  is  certainly  sufficient  if 
stamped  or  printed  on  the  bill,(z)  and  probably  sufficient  if  writ- 
ten in  pencil. (a)  The  date  is  immaterial,  unless  the  bill  is  paya- 
ble so  many  days  after  sight,  or  after  acceptance ;  in  that  case  it 
usually  is,  and  always  should  be,  added ;  but  if  not  added,  the 
actual  date  may  be  shown  by  evidence ;  and  will  then  have  the 
same  effect  as  if  it  were  written. (Z>)  No  special  form  or  manner 
or  words  of  acceptance  are  necessary ;  (c)  nor  is  the  signature  of 
the  drawee  essential,  although  usual  and  proper,  (c^)  The  rule 
seems  to  be,  as  drawn  from  the  authorities  and  the  reason  of  the 
case,  that  if  a  bill  is  presented  to  a  drawee  for  the  purpose  of 
obtaining  his  acceptance,  and  he  does  anything  to  or  with  it 
which  does  not  distinctly  indicate  that  he  will  not  accept  it, 
he  is  held  as  an  acceptor ;  for  he  has  the  power,  and  it  is  his 
duty,  to  put  this  question  beyond  all  possibility  of  doubt.(e) 
Thus  "  Accepted,"  without  a  signature,(/)  or  even  "  Pre- 
sented," (^'■)   or  " Honored,"(A)  or  "I  will  pay  the  bill,"(i)  or 


In  Petit  V.  Benson,  Comb.  452,  it  is  assumed  that  an  acceptance  payable  half  in  money 
and  half  in  bills  is  valid  as  to  the  part  payable  in  money,  and  not  as  to  the  part  paya- 
ble in  bills.  An  acceptance  must  be  to  pay  in  money  ;  an  acceptance  to  pay  by  another 
bill  is  no  acceptance.  Russell  v.  Phillips,  14  Q.  B.  891.  An  acceptance  is  not  a 
collateral  i)roinise  to  pay  the  debt  of  another  within  the  statute  of  frauds.  Haborg  v. 
Peyton,  2  Wheat.  385;  Fisher  v.  Beckwith,  19  Vt.  31,  See  Storer  v.  Logan,  9  Mass. 
55,'  60. 

(z)  See  Schneider  v.  Norris,  2  Maule  &  S.  286. 

(a)   Supra,  p.  21,  note  y. 

(6)  Kenner  v.  Creditors,  20  I\Lart.  La.  36,  1  La.  120.  See  Glossop  v.  Jacob,  4 
Camp.  227. 

(c)  Spear  v.  Pratt,  2  Hill,  582,  -vvherc  the  signature  of  the  drawee  across  the  face  of 
the  bill  was  held  a  valid  acceptance,  even  under  the  statute  requiring  acceptances  to  be 
in  writing  and  signed. 

(d)  Phillips  V.  Frost,  29  Maine,  77  ;  Dufaur  v.  Oxenden,  1  Moody  &  R.  90.  In  this 
case  it  was  left  to  the  jury  to  decide  whether  the  acceptance  was  complete,  and  they 
decided  that  it  was. 

(e)  See  Cowcn,  J.,  Spear  i;.  Pratt,  2  Hill,  582 ;  llarvey  v.  Martin,  1  Camp.  425,  note ; 
Jeune  v.  Ward,  2  Stark.  326. 

{/)  Sec  supra,  note  d. 

{g)  Holt,  C.  J.,  Anonymous,  Comb.  401. 

(/()   Story  on  Bills,  §  243. 

(i)  Ward  V.  Allen,  2  Met.  53  ;  Lord  Ellenborough,  C.  J.,  Wynne  v.  Raikcs,  5  East, 
514  ;  Leach  v.  Buchanan,  4  Esp.  226.  In  Ivlson  v.  Fuller,  2  Foster,  183,  a  parol  prom- 
ise "to  settle"  a  note  was  held  a  valid  acccj)tance  of  an  order  indorsed  upon  it  for  the 
amount  due.  So  where  the  cashier  of  a  bank  pronounced  a  check  drawn  upon  it 
"good."  Barnct  v.  Smith,  10  Foster,  256.  Where  the  drawee  wrote  on  the  back  of  a 
bill,  "  1  will  sec  the  within  paid  eventually,"  and  signed  it,  it  was  held  a  valid  accept 


en.  IX.]  WHAT   CONSTITUTES   ACCEPTANCE.  283 

"  Sccn,"(y)  or  the  day  and  mouth  when  presented, (/c)  or  a  written 
direction  liy  the  drawee  to  some  other  person  to  pay  the  bill,(/)  or 
the  mere  signature  of  the  drawee, (m)  have  been  hehl  equivalent  to 
an  acceptance.  Probably  if  it  could  be  shown  by  evidence  that 
any  of  these  acts,  which  might  be  considered  ambiguous,  was  not 
intended  to  be  taken  as  an  acceptance,  and  in  fact  was  not  so 
taken,  and  that  there  was  no  fraudulent  design,  such  act  or  word 
would  not  bind  as  an  acceptance.  It  has  indeed  been  said,  that 
"  I  will  not  accept  this  bill,"  being  written  upon  it,  is,  bij  the  cw- 
tom  of  merchants,  a  good  acceptance.  But  it  is  incredible  that 
such  a  mode  of  acceptance  should  ever  be  customary,  and  it  is 
difficult  to  maintain  such  a  rule  of  law.  If  the  refusal  were  fraud- 
ulent, and  intended  to  be  understood  as  an  affirmative  accept- 
ance, and  was,  in  fact,  so  understood,  there  would  undoubtedly 
be  some  adequate  remedy  against  the  perpetrator  of  the  fraud ; 
but  even  then  it  would  not  be  easy,  on  legal  principles,  to  make 
this  an  acceptance,  (w) 


anco  binding  forthwith.  Brannin  v.  Henderson,  12  B.  Mon.  61.  See  also  infra,  §§  2,  3. 
A  .statement  by  the  drawee  of  a  bill  to  a  third  party,  not  privy  to  the  bill,  nor  an  agent 
of  any  one  interested  in  it,  that  he  "  must  pay,"  or  "  would  have  to  pay  "  it,  is  not  an 
acceptance,  nor  admissible  alone  as  evidence  from  which  a  jury  may  find  an  acceptance. 
Martin  v.  Bacon,  4  Const.  R.  132.  A  bill  had  been  left  with  the  drawee  for  accept- 
ance. The  drawee  subsequently  returned  it  to  the  holder's  clerk,  saying,  "  There  is 
your  bill ;  it  is  all  right  "  Held  by  Lord  Kmijon  as  evidence  of  acceptance.  Powell  v. 
Jones,  1  Esp.  17.  It  has  been  said,  that  whether  there  has  been  an  acceptance  or  not 
is  a  question  of  law  upon  the  facts  found.  Barnet  v.  Smith,  10  Foster,  256  ;  Edson  v. 
Fuller,  2  id.  183;  Sproat  v.  Matthews,  1  T.  R.  182.  If  the  drawee  says  he  cannot 
accept  until  further  directions  from  A,  and  A  afterwards  desires  him  to  accept  and 
draw  upon  B  for  the  amount,  the  mere  drawing  upon  B  is  not  an  acceptance  until  the 
bill  is  accepted  by  B.     Smith  v.  Nissen,  1  T.  R.  269. 

(j)  Eastman,  J.,  Barnet  v.  Smith,  10  Foster,  256  ;  Coicen,  J.,  Spear  ».  Pratt,  2  Hill,  582. 

(ic)  Holt,  C.  J.,  Anonymous,  Comb.  401 .  In  Powell  v.  Monnicr,  1  Atk.  61 1,  the  defend- 
ant received  the  bill  before  it  was  due,  kept  it  ten  days,  entered  it  in  his  bill-book  under 
a  particular  number,  marking  that  number  and  a  date  upon  the  bill,  and  wrote  to  the 
drawer  that  the  bill  "should  be  duly  honored  and  placed  to  his  debt."  Lord  Hard- 
wicke  observed  :  "  Now  it  has  been  said  to  be  the  custom  of  merchants,  that,  if  a  man 
underwrites  anything,  let  it  be  what  it  will,  it  amounts  to  an  acceptance ;  but  if  there 
was  no  more  than  this  in  the  case,  I  should  think  it  of  little  avail  to  charge  the  defend- 
ant"    The  letter  was,  however,  held  to  amount  to  an  acceptance. 

(/)  Moor  V.  Wilhy,  Buller,  N.  P.  270. 

(m)  Spear  v.  Pratt,  2  Hill,  582. 

n)  Lumley  v.  Palmer,  Cas.  Temp.  Hardw.,  London  ed.,  74.  But  in  Bayley  on  Bills, 
164,  note  (2d  Am.  ed.),  it  is  added  :  "But  by  Lord  Mansjield,  in  Peach  v.  Kay,  in  sit- 
tings after  Trinity  term,  1781,  '  it  was  held  by  all  the  judges,  that  an  express  refusal  to 
accept,  written  on  the  bill,  where  the  drawee  apprised  the  party  who  took  it  away  what 


284  KOTES   AXD    BILLS.  [CH.  IX. 

That  a  drawee  may  refuse  acceptance  is  certain ;  and  bills  are 
every  day  protested  in  all  commercial  cities  for  non-acceptance. 
But  it  would  seem  that  the  proper  and  only  safe  way  of  non- 
accepting  is  to  make  a  positive  refusal  in  words,  but  without  writ- 
ing. Even  if  a  drawee  silently  detains  a  bill  for  a  considerable 
time,  it  hnj-.  been  said  that  this  act  might  be  regarded  as  an  ac- 
ceptance. We  think,  however,  both  on  authority  and  on  reason, 
that  mere  detention  or  delay  should  not,  of  itself  and  alone,  be 
considered  as  the  equivalent  of  acceptance  ;  but  that  any  unrea- 
sonable delay  which  caused  injury  to  the  holder  withont  his  fault, 
or  which,  from  the  circumstances,  justified  the  holder  in  believ- 
ing that  the  bill  was  accepted,  would  bind  the  drawee  as  by  an 
acceptance. (o)  We  should  say  that  some  duty  lay  upon  the 
holder  to  inquire  after  his  bill,  and  know  why  it  was  silently  de- 
tained;  and  the  cases  sometimes  indicate  this. (7?)  And  it  has 
been  held  that  the  destruction  of  a  bill  by  the  drawee,  when  the 
bill  was  left  for  acceptance,  bound  him  as  an  acceptor ;  {q)  but 


he  had  written,  was  no  acceptance  ;  bat  if  the  drawee  had  intended  it  as  a  surprise  upon 
the  party,  and  to  make  him  consider  it  as  an  acceptance,  they  seemed  to  thinli  it  might 
have  been  otiierwise.'  "     See  supra,  p.  26,  note  u. 

(o)  In  Harvey  v.  Martin,  1  Camp.  425,  note,  the  drawer  sent  a  bill  to  tlie  drawee, 
requesting  Iiim  to  accejit  and  send  it  to  the  plaintiff,  tlie  payee.  Two  weeks  after, 
the  drawer,  learning  that  tiie  bill  had  not  been  received  by  the  payee,  wrote  asking 
him  again  to  accept  and  send  tlic  bill,  saying  that  detention  would  be  considered  as 
equivalent  to  acceptance,  but  that  the  payee  would  not  give  credit  till  the  bill  was 
received.  After  some  time  the  drawee  informed  the  drawer  that  he  had  intended  to 
pay  it,  but  now  refused,  as  he  had  no  funds  of  the  drawer  in  his  hands.  The  reports 
of  this  case  are  somewhat  conflicting  and  unsatisfactory,  but  it  seems  that  detention 
alone  would  have  been  deemed  sufhcicnt.  See  Jeune  v.  Ward,  2  Stark.  326,  note, 
I  B.  &.  Aid.  6.53.  The  length  of  time  during  which  a  bill  may  be  retahicd  without  any 
presumption  of  acceptance  may  be  controlled  by  the  usage  of  trade.  See  Fernandcy 
V.  Glynn,  1  Camp.  426,  note  ;  Mason  v.  Barlf,  2  B.  &  Aid.  26.  Mhott.  C.  J.  said,  that 
the  doctrine  that  detention  for  an  unreasonable  time  amounts  to  acceptance  "is  not 
supported  by  the  authority  of  any  decided  case,  for  the  cases  have  all  been  decided 
upon  very  special  circumstances."  See  also  Clavey  v.  Dolbin,  Cas  Temp.  Hardw, 
Dublin  cd.,  264.  In  Koch  ».  Howell,  6  Watts  &  S.  3.50,  it  was  contended  that  tho 
retention  of  an  order  by  the  drawee  until  the  trial,  without  informing  the  j)ayee  of  any 
determination  to  accept,  amounted  to  .an  acceptance  at  law.  But  the  court  held  other- 
wise, and  that  it  was  a  question  for  the  jury  to  consider.  In  some  States  there  aro 
statutory  provisions  on  this  subject.     Sec  infra,  p.  285,  note  u. 

(/))  Jeune  V.  Ward,  1  B.  &  Aid.  653,  659,  per  Bmjloi/,  J. 

(7)  .Icune  V.  Ward.  2  Stark.  326.  In  this  ca.se  the  ])ayec  of  a  bill  presented  it  for 
ftcceptancc,  but  tlic  drawee  refused.  Tlie  bill  was  however  left  with  hitn.  The  payee 
afterwards  took  further  sti.-ps  towards  obtaining  the  money  by  negotiation,  and  fi'nally 
the  dra'  rcc  destroyed  the  bill,  having  retained  it  in  his  hands  for  more  than  a  month 


CH.  L\.]  WHAT   CONSTITUTES   ACCEPTANCE.  285 

there  seems  no  necessity  for  such  an  extraordinary  construction, 
for  other  and  more  appropriate  forms  of  action  would  afford  as 
complete  a  remedy  for  the  wrong  done.  If,  after  a  positive  re- 
fusal to  accept,  the  holder  leaves  the  bill  with  the  drawee,  neither 
Ids  retaining  it,  nor,  it  is  said,  his  destruction  of  it,  will  amount 
to  an  acceptance. (r)  It  seems  now  to  be  settled  on  authority, 
and  perhaps  for  sufficient  reason,  that  an  acceptance  need  not  bo 
in  writing,(A')  or,  if  in  writing,  need  not  be  on  the  bill  itself,(^) 
except  where  this  is  required  by  statutory  provisions,  as  stated  in 
our  notes. (w)     Words,  however,  which  arc  to  have  this  effect,  if 


Lord  Ellenhorowjh  ruled  at  Nisi  Prius  that  the  destruction  of  the  bill,  under  the  cir- 
cumstances, was  equivalent  to  an  acceptance,  and  a  verdict  was  rendered  against  the 
drawee.  The  verdict  was  afterwards  set  aside  by  the  Court  of  King's  Bench,  Lord 
Ellenborough  dissenting,  1  B.  &  Aid.  653.  Lord  EUeitborouyh,  in  his  opinion  on  the 
motion  to  set  aside  the  verdict,  seems  to  lay  more  stress  on  the  circumstances,  aside 
from  the  destruction  of  the  bill,  than  in  his  opinion  at  Nisi  Prius,  and  he  observes : 
"  If  indeed  the  bill  had  not  originally  been  left  for  acceptance,  the  whole  case  would 
certainly  fall  to  the  ground.  But  I  think  it  clearly  appears  from  the  evidence,  that  it 
was  so  left,  and  the  defendant,  not  having  in  a  reasonable  time  notified  his  refusal  to 
accept,  and  having  ultimately  destroyed  the  bill,  must,  as  it  seems  to  me,  be  held  liable 
for  it  as  the  acceptor."  But  the  other  judges  doubted  whether  the  bill  was  left  for  ac- 
ceptance, and  declined  to  decide  the  question  as  presented  by  Lord  Ellcnborough. 
There  is  much  difficulty  in  ascertaining  from  the  reports  of  this  case  what  were  the 
real  facts  upon  which  the  opinions  of  the  court  were  based  ;  and  intimations  are  given 
of  a  disposition  to  limit  the  doctrine  of  constructive  acceptances,  and  even  of  regret 
that  it  had  been  carried  so  far.  Ahbolt,  J.  remarked  :  "  I  look  witli  the  greatest  anxiety 
at  these  cases  of  constructive  acceptance,  for  every  decision  of  that  kind  introduces  un- 
certainty upon  a  subject  where  the  public  interest  requires  that  the  greatest  certainty 
should  prevail.  If  indeed  it  were  res  integra,  it  would  be  most  desirable  that  the  liabil- 
ity of  the  acceptor  should  be  confined  to  the  case  of  an  actual  acce])tance  on  the  face 
of  the  bill.  I  own,  I  wish  the  rule  had  been  so  laid  down  originally."  So  Lawrence 
J.,  Clarke  v.  Cock,  4  East,  57  ;  Lord  Ken/jon,  C.  J.,  Johnson  v.  Collings,  1  East,  98. 
This  subject  has  been  regulated  by  statute  in  many  States,  as  will  appear  hereafter. 

(»•)  This  seems  to  have  been  conceded  by  the  whole  court  in  Jeune  v.  Ward,  1  B.  & 
Aid.  653. 

(s)  Lumley  r.  Palmer,  Cas.  Temp.  Hardw.,  London  cd.,  74,  2  Stra.  1000  ;  Julian 
V.  Shobrooke,  2  Wils.  9  ;  Miln  v.  Prest,  Holt,  N  P.  181,  4  Camp.  393  ;  Fairlee  v.  Her- 
ring, 3  Bing.  625,  11  J.  B.  Moore,  520 ;  Sproat  v.  Matthews,  1  T.  K.  182  ;  Walker  v. 
Lide,  1  Rich.  249  ;  Fisher  v.  Beckwith,  19  Vt.  31  ;  Ward  v.  Allen,  2  Met.  53;  Grant 
D.  Shaw,  16  Mass.  341  ;  Edson  v.  Fuller,  2  Foster,  183  ;  Barnct  v.  Smith,  10  id.  256; 
Leonard  v.  Mason,  1  Wend.  522;  Ontario  Bank  v  Worthington,  12  Wend.  593; 
Williams  v.  Winans,  2  Green,  N.  J.  339.  But  see  Bank  of  Ireland  v  Archer,  11  M.  & 
W.  383,  in  which  the  accuracy  of  the  report  of  Miln  v.  Prest,  as  given  in  Holt,  N.  P. 
181,  is  doubted. 

(t)  Billing  V  Devaux,  3  Man.  &  G.  565  ;  Hatcher  v.  Stalworth,  25  Missis.  376. 

(u)  In  Alabama,  an  acceptance  must  be  in  writing,  and  signed  by  tlie  acceptor  or  hia 
agent.  Code,  1852,  §  1532;  so  in  California,  Comp.  L.  1853,  c.  27,  §§  6,  7  ;  in  Mis- 


2h6  NOTES   AND    BILLS.  [CH.  IX. 

only  spoken,  should  be  clear  and  explicit ;  (v)  and  if  written,  but 
not  on  the  bill,  they  should  be  similar  words,  and  should  be  writ- 
ten on  some  paper  which  distinctly  relates  to  the  bill.  For  this 
purpose  a  receipt,  memorandum,  or  letter  might  suffice. (?t?) 

To  all  this,  however,  there  is  one  important  exception.  If  the 
drawee  accepts  in  writing  on  the  bill,  he  is  held  without  any  ref- 
erence to  the  person  making  the  request.  But  if  the  acceptance 
is  only  iii  words  spoken,  they  have  no  such  effect,  unless  spoken 
to  one  then  having  an  interest  in  the  bill,  or  subsequently  ac- 
quiring an  interest  on  the  credit  and  influence  of  the  words  so 
spoken. (aj)  If  the  words  are  written,  but  not  on  the  bill,  the 
rule  must  be  substantially  the  same ;  but  the  writer,  because  he 
has  given  permanence  and  transferableness  to  his  words,  might 
be  held  to  any  bona  fide  holder  of  the  bill  to  whom  they  were 
communicated.  Sometimes  the  course  of  dealing  between  the 
parties  has  an  important  effect.  Thus,  where  the  drawer  advised 
the  drawee  of  the  bill  by  letter,  and  the  drawee  replied  that 
"  the  bill  shall  have  attention,"  it  was  held  that  those  words  taken 
by  themselves  were  not  sufficiently  positive  and  unequivocal  to 
amount  to  actual  acceptance  ;  but  that  if  it  could  be  shown  that 
such  words  were  used  for  that  purpose,  and  with  that  effect,  in 
dealings  between  the  parties,  then  they  might  be  regarded  as  au 
acceptance,  (y) 

We  shall  see  that  a  bill  must  be  presented  for  acceptance, 
under  penalty  of  certain  consequences  ;  but  it  does  not  seem 
that  an  acceptance,  distinctly  made,  under  circumstances  indicat- 
ing that  the  drawee  knew  precisely  what  bill  he  was  accepting, 

souri,  R.  S.  !835,  p.  97  ;  in  Wisconsin,  R.  S.  1858,  c.  60,  ^  7  ;  and  in  New  Yori<,  R.  S. 
pt.  2,  c.  4,  tit.  2,  ^§  6,  7.  It  is  enacted  also  in  tlie  latter  State  and  in  California, 
that  if  the  acceptance  is  written  on  a  paper  other  than  the  bill,  it  shall  not  bind  the  ac- 
ceptor, except  in  favor  of  a  person  to  whom  such  acceptance  shall  have  been  sliown, 
and  who,  upon  the  faith  thereof,  shall  have  received  the  bill  for  a  valuable  considera- 
tion.    See  Luff  v.  Pope,  5  Hill,  413,  7  id.  577. 

In  Kngland,  by  Stat.  1  and  2  Geo.  IV".  c.  78,  an  acceptance  of  an  inland  bill  must 
be  in  writing,  on  the  bill  itself,  or  on  a  part  of  it,  if  a  set  of  exchange.  This  is  re- 
enactcfl  and  extended  to  Ireland  by  Stat.  9  Geo.  IV.  c.  24,  §  8 ;  so  in  New  Brunswick, 
R.  S.  1854,  c.  116,  ^  4. 

(v)  Sn/im,  p.  282,  note  t  ,•  Rec8  v.  Warwick,  2  B.  &  Aid.  113. 

{w)  See  I'illans  v.  Van  Microp,  3  Burr.  1063;  I'icrson  v.  Dunlop,  Cowp.  571  ;  Pow- 
ell r.  Monnier,  1  Atk.  Oil  ;  Mason  v.  Hunt,  I  Doug.  297. 

(z)  See  Martin  v.  Bacon,  4  Const.  R.  132. 

ly)  Rces  v  Warwick,  2  Stark.  411,  2  B.  &  Aid.  113.  Sec  Parke,  J.,  Fairlue  » 
Herring,  3  Bing.  631. 


CH.  IX.]  WHAT    COXSTITUTES    ACCEPTANCE.  28T 

would  be  invalid,  merely  because  the  bill  was  not  actually  shown 
and  presented. (2)  If  it  is  presented,  then  —  when  no  statute 
intervenes  —  the  general  rule  is,  that  any  conduct  of  tlie  drawee 
from  which  the  holder  is  justified  in  drawing  the  conclusion  that 
the  drawee  intended  to  accept  the  bill,  and  intended  to  be  so 
understood,  will  be  regarded  as  an  acceptance. 

On  this  ground  it  has  been  decided  tliat  a  letter  from  the 
drawee  to  the  drawer,  the  latter  being  dead  and  the  former  not 
knowing  this  fact,  might  be  treated  as  an  acceptance. (a)  The 
death  of  the  drawer  is  no  objection  whatever  to  an  ordinary 
acceptance  by  the  drawee,  whether  with  or  without  knowledge  ; 
for  the  death  is  no  revocation  of  the  bill,  if  it  has  passed  into  the 
hands  of  a  holder  for  value. (/>)     It  seems  that  bills  are  sometimes 


(z)  Fisher  v.  Beckwitli,  19  Vt.  31.  See  Clarke  v.  Cock,  4  East,  57  ;  Cox  v.  Cole- 
Plan,  Cliitty  on  Bills,  288. 

(a)  Billing  V.  Dcvaux,  3  Man.  &  G.  565. 

(6)  Cutts  V.  Perkins,  12  Mass.  206.  In  this  case  the  drawer,  a  master  of  a  vessel, 
having  received  goods  on  board,  drew  on  the  consignee  for  the  amount  of  the  freight 
to  become  due  on  the  completion  of  the  voyage,  in  favor  of  a  creditor.  'J'he  master 
died,  his  estate  being  insolvent.  The  consignee  accepted  the  draft  and  paid  the  bill 
with  knowledge  of  the  drawer's  death.  The  administrator  sued  the  consignee  for  the 
freight  but  was  not  allowed  to  recover. 

Chitty,  p.  282,  says  :  "  It  should  seem  that  where  a  bill  has  been  drawn  in  payment 
of  a  debt  from  the  drawer  to  the  payee,  the  drawee  may  legally  accept  the  bill  after  no- 
tice of  the  death  of  the  drawer,  such  death  not  revoking  the  order  given  in  favor  of  a 
lona  Jide  creditor."  And  on  p.  287  :  "  If  a  person  draw  a  bill  of  exchange  on 
another,  and  deliver  it  to  the  payee  for  a  sufficient  consideration,  and  the  drawer  then  die, 
it  should  seem  that  this,  having  been  an  appropriation  of  a  particular  fund  for  the  benefit 
of  the  payee,  the  death  would  be  no  revocation  of  the  request  to  accept,  and  that  the 
drawee  may  accept  and  pay."  The  principal  authority  cited  is  Tate  v.  Hilbert,  2  Ves.  Jr. 
118.  Byles,  p.  17,  says  :  "It  seems  that  the  death  of  the  drawer  of  a  check  is  a  coun- 
termand of  the  banker's  authority  to  pay  it.  But  that  if  the  banker  do  pay  the  check  be- 
fore notice  of  the  death,  the  payment  is  good."  The  authority  cited  is  also  Tate  v.  Hil- 
bert. These  two  propositions  are  irreconcilable.  It  will  be  observed  that,  although  in 
Cutts  V.  Perkins,  2  Mass.  206,  the  draft  was  drawn  for  the  whole  of  a  fund,  yet,  in  con- 
sidering the  question  whether  the  draft  amounted  to  an  assignment,  the  court  thought  it 
unnecessary  to  consider  whether  it  was  a  bill  of  exchange  or  not.  The  question  as  to  how 
far  a  bill  of  exchange  or  a  check  operates  as  an  assignment  is  considered  subsequently. 
The  correct  doctrine,  it  will  be  seen,  is,  that  after  acceptance  the  bill  is  considered  as  an 
assignment.  Hence  the  question,  on  the  point  now  under  consideration,  is  whether  the 
death  of  the  drawer,  after  he  has  given  up  all  control  over  that  part  of  the  fund  in  the 
hands  of  the  drawee  which  is  equal  to  the  amount  of  the  bill,  can  have  any  effect  on 
the  right  of  the  drawee  to  do  all  that  is  wanting  to  make  the  bill  a  complete  assign- 
ment. This  right  on  the  part  of  the  drawee  to  complete  the  assignment  would  seem  to 
be  a  privilege  of  his  own,  and  it  is  somewhat  difficult  to  see  how  the  death  of  the 
drawer  can  affect  it.    The  drawer  has  given  the  holder  a  written  instrument,  authoriz- 


288  NOTES   AND    BILLS.  [CH.  IX 

drawn  directing  the  drawee  to  pay  "  without  acceptance."  Such 
an  instrument  is  still  a  bill  of  exchange, (c)  and  it  has  been  said 
that  these  words  merely  permit  the  holder  to  make  no  present- 
ment for  acceptance  until  the  bill  has  become  payable. (r/)  It 
may  be,  however,  that  such  words  are  used  to  insure  the  holder 
against  any  ill  effect  of  want  of  presentment  for  acceptance.  It 
has  been  said,  also,  that  these  words  would  exempt  the  drawer 
from  liability  to  pay  merely  on  non-acceptance,  leaving  him  lia- 
ble, of  course,  on  non-payment. (e) 

Tliere  is  a  class  of  cases  in  which  the  act  of  drawing  itself 
constitutes  acceptance  ;  as  where  a  person  draws  a  bill  upon 
himself ;  (/)  or  does  not  address  it  to  any  one  ;  (g)  or  where  a 
partner  draws,  in  his  own  name,  upon  the  firm  of  which  he  is  a 
member  for  partnership  purposes  ;  (h)  or  where  a  bill  is  drawn 
by  an  officer  of  a  corporation,  legally  authorized  so  to  do,  on  the 
corporation. (i)  Such  instruments  are,  however,  in  legal  effect 
promissory  notes. 

If  a  party  accepts  a  bill  in  which  no  drawee  is  named,  and 
there  is  nothing  in  the  bill  to  indicate  that  the  party  accepting 
is  not  the  drawee,  this  acceptance  operates,  generally  at  least, 
as  an  admission  by  him  that  he  is  the  drawee.  We  should  say 
that  the  bill  should  then  be  considered  complete,  and  he  be  held 

ing  the  latter  to  apply  to  the  drawee  for  the  assignment  of  certain  funds.  The  holder, 
if  the  bill  was  received  for  a  sufficient  consideration,  has  an  interest  in  this  authority, 
—  not  merely  in  the  proceeds  of  the  bill,  but  in  the  bill  itself  (see  the  distinction 
taken  by  .]farshall,  C.  J.,  in  Hunt  v.  Kousmanier,  8  Wheat.  201) ;  and  the  rule  is,  that 
an  autliority  coupled  with  an  interest  is  irrevocable. 

(c)  And  may  be  so  described  in  an  indictment  for  forgery.  Queen  v.  Kinnear,  2 
Moody  &  R.  117.  In  Miller  v.  Thomson,  3  Man.  &  G.  .576,  such  an  instrument  was 
declared  on  as  a  promissory  note ;  but  in  that  case  the  bill  was  drawn  upon  a  joint- 
stock  bank  by  the  manager  of  one  of  its  branch  banks. 

((/)  Queen  V.  Kinnear,  2  Moody  &  II.  117. 

{e)  Muule,  J.,  Miller  v.  Thomson,  3  Man.  &  G.  576,  579.     Sed  qucere. 

if)  Cunningiiam  v.  Wardwell,  3  Fairf  466;  Roach  v.  Ostler,  1  Man.  &  R.  120. 
Sec  Hasey  v.  White  Pigeon  B.  S.  Co.,  1  Doug.  Mich.  193. 

{())  See  Dougal  v.  Cowles,  5  Day,  511  ;  Marion,  &c.  R.  Co.  v.  Hodge,  9  Ind.  163. 

(//)  Dougal  r.  Cowles,  5  Day,  511.     See  Miller  v.  Thomson,  3  Man.  &  G.  576. 

(0  Hasey  v.  White  Pigeon  B.  S.  Co,  1  Doug.  Midi.  193;  Miller  r.  Thomson,  3 
Man.  &  G.  576.  Such  an  instrument  is  a  clear  acknowledgment  of  an  indebtedness, 
and  may  be  tlie  foundation  of  an  action.  Marlon,  &c.  R.  Co.  v.  Hodge,  9  Ind.  163.  It 
must  be  presented  in  a  reasonable  time  for  payment.  Marion,  &c.  R.  Co.  v.  Dillon,  7  id. 
404.  Contra,  Fairchild  v.  ().  C.  &  R.  R.  Co ,  15  N.  Y.  337.  The  declaration  in  au 
action  against  the  corporation  must  allege  that  tlie  orders  had  been  presented  for  pay 
mcnt.    Marion,  &c.  R.  Co.  v.  Lomax,  7  Ind.  648 ;  Marion,  &c.  R.  Co.  v.  Dillon,  id.  4(M 


CII.  IX.]  WHAT    CONSTITUTES    ACCKPTANCE.  289 

liable  as  an  acceptor. (j)  If  there  is  no  date  to  an  acceptance, 
the  presumj)tion  of  law  is  that  it  was  accepted  before  due,  and 
whoever  asserts  that  the  acceptance  was  after  maturity  must 
prove  it.  This  presumption  would  rest  on  the  course  of  business, 
as  making  this  usual  and  actually  probable,  aiid  also  on  the  prin- 
ciple that  the  instrument  becomes  thereby  more  perfectly  what 
it  purports  to  be,  a  regularly  negotiated  bill  of  exchange. 

But  although  every  acceptance  is  presumed  to  have  been 
made  within  a  reasonable  time  after  the  date  of  the  bill,  and 
before  it  falls  due, (A;)  yet  it  is  not  invalid  because  made  after 
maturity.  The  acceptor,  in  such  case,  is  liable  to  pay  on  de- 
mand, and  if  the  declaration  states  the  acceptance  to  be  "  accord- 
ing to  the  tenor  and  effect"  of  the  bill,  these  words  are  consid 
ered  surplusage.(/)  Acceptance  may  also  be  made  after  a 
previous  refusal  to  accept ;  (m)  but  it  has  been  held  that,  if  the 
holder  of  a  bill  payable  a  certain  number  of  days  after  sight 
elects  to  consider  what  passes  on  presentment  as  a  refusal  to 
accept,  and  protests  the  bill,  he  is  bound  by  such  election  as  to 
the  other  parties  to  the  bill  ;  and  if  he  neglects  to  give  them 
notice  of  dishonor,  they  are  discharged,  although  the  drawee 
retracts  his  refusal  the  next  day,  and  accepts.  (?^)     An  accept- 

( y)  Gray  v.  Milner,  3  J.  B.  Moore,  90 ;  Regina  v.  Hawkes,  2  Moody,  C.  C  60 ; 
Wheeler  v.  Webster,  1  E.  D.  Smith,  1.  There  hardly  seems  to  be  sufficient  reason  for 
the  remark  of  Patteson,  J.,  Davis  v.  Chirke,  6  Q.  B.  16,  that  this  decision  "goes  to  the 
extremity  of  what  is  convenient."  Considerable  doubt  has  also  been  thrown  upon  this 
point  by  the  case  of  Peto  v.  Reynolds,  9  Exch.  410.  But  the  objections  are  hardly  satis- 
factory. It  is  said  in  Gray  v.  Milner,  supra,  that,  the  bill  being  addressed  to  the  inhab- 
itant of  a  particular  house,  the  defendant's  acceptance  was  conclusive  evidence  that  he 
lived  in  that  house,  and  consequently  the  drawer  was  induced  to  look  no  further.  But 
why  may  not  the  acceptance  be  as  well  conclusive  evidence  that  the  acceptor  was  the 
party  intt?nded  to  be  drawn  upon,  and  thereby  the  drawer  was  induced  to  look  no  further  ? 
The  objection,  that,  if  such  an  instrument  was  presented  to  two  or  more  acceptors,  each 
of  whom  promises  to  pay,  there  would  be  some  doubt  as  to  which  was  the  acceptor,  is 
likewise  unsatisfactory.  It  would  be  clearly  the  first,  and  the  names  of  subsequent 
acceptors  would  be  mere  surplusage,  as  in  the  bill  where  a  drawee  was  named.  With 
regard  to  the  case  of  Regina  v.  Hawkes  not  being  entitled  to  the  same  weight  of  author- 
ity as  a  decision  pronounced  in  the  presence  of  the  public,  it  might  be  suggested  that 
certainty  is  much  more  requisite  in  an  indictment  for  forgery  than  in  a  declaration  in 
a  civil  suit. 

(k)  Roberts  v.  Bethell,  12  C.  B.  778. 

(/)  Jackson  v.  Pigott,  I  Ld.  Raym.  364  ;  IMutford  v.  Walcot,  id.  574  ;  Stein  v. 
Yglesias,  1  Cromp  M.  &  R.  565  ;  Billing  v.  Devaux,  3  Man.  &  G.  565;  Christie  v. 
Pearl,  7  M.  &  W.  491. 

(/«)  Wynne  v.  Raikes,  5  East,  514. 

(n)  Mitchell  v.  Dcgraud,  1  Mason,  76. 

Vol.  I.— T 


290  NOTES   AND   BILLS.  [CH.  IX. 

ance  may  be  made  prior  to  drawing  the  bill,  by  writing  the  name 
of  the  acceptor  across  the  face  of  the  paper  ;  and  if  the  acceptor 
delivers  it  as  an  acceptance,  he  is  estopped  from  saying  that  he 
delivered  it  before  the  bill  was  drawn,  nor  need  the  holder  prove 
any  custom  of  merchants  thus  prematurely  to  accept  an  intended 
bill,  nor  will  there  be  a  variance  if  the  declaration  states  the 
drawing  of  the  bill  in  the  usual  form,  and  that  the  drawee  after- 
wards accepted.  We  think,  however,  the  paper  should  be  filled 
up  and  used  within  a  reasonable  time  after  it  was  signed,  (o) 
The  acceptor  of  such  a  paper  may  be  made  liable  for  any  amount 
which  the  person  receiving  the  paper  chooses  to  insert  in  the 
bill  ;  nor  is  it  necessary  tliat  the  bill  be  drawn  by  the  same 
person  to  whom  the  blank  acceptance  is  handed. (/>) 

A  factor  who  receives  and  holds  goods  against  which  a  bill  of 
exchange  is  drawn,  acquires  a  lien  on  the  consignment  for  the 
amount  of  the  bill,  even  though  the  goods  are  not  in  his  possession, 
but  are  still  in  the  hands  of  a  forwarder. (q-)  It  is  however  well 
settled,  that  a  bill  of  exchange  drawn  against  a  consignment  of 
goods  does  not  generally  operate  as  a  specific  appropriation  of  the 
goods  or  their  proceeds  to  the  payment  of  the  bill,  either  at  law  or 
in  equity,  (r)  And  if  a  person  has  goods  or  funds  in  the  possession 
of  another,  he  cannot  by  drawing  a  bill  on  that  person  render 

(o)  Molloy  V.  Delves,  4  Car.  &  P.  492,  .5  Moore  &  P.  275  ;  Bank  of  Limestone  v. 
Penick,  5  T.  B.  Moii.  25.  In  Montague  v.  Perkins,  C.  B.  1853,  22  Eng.  L.  &  Eq.  516, 
it  was  held  that  it  is  no  defence  that  an  acceptance  was  given  in  blank  to  the  drawer, 
and  tliat  the  bill  was  not  issued  until  twelve  years  after;  the  statute  of  limitations  com- 
mencing to  run  from  the  time  the  bill  was  due  as  filled  up,  and  not  from  the  time  it 
would  have  become  due  if  completed  when  accepted  in  blank.  In  Tem[)lc  v.  Pullen, 
8  ICxch.  389,  it  was  lield  proper  to  leave  the  question  to  the  jury  to  say  whetlier  a  note 
which  was  not  filled  up  till  six  years  after  the  signature  in  blank,  was  filled  up  within 
a  reasonable  time,  considering  the  circumstances  of  the  defendaiit  and  his  ability  to 
pay  the  note.  The  same  doctrine  seems  to  liave  been  decided  with  regard  to  a  blank 
acceptance,  in  Mulhall  v.  Neville,  8  Exch.  391,  note.  The  authority  given  by  a  blank 
acceptance  to  fill  it  up  is  not  lost  merely  because  the  drawer  by  mistake  antedates  the 
insn-umcnt  a  year,  although  it  is  made  payable  a  certain  time  after  date  ;  and  if  the 
period  has  elapsed  from  the  time  of  the  com[)letion  of  the  instrument,  an  action  may 
be  maintained  upon  it,  and  the  variance  will  be  amendable.  Armfield  v.  Allpurt,  3  H. 
&  N.  911. 

{p)  Sihultz  V.  Astlcy,  2  Bing.  N.  C  544,  7  Car.  &  P.  99. 

(7)  Davis  V.  Bradley,  28  Vt.  118;  Gragg  v.  Brown,  44  Maine,  157;  1  Parsons  on 
Contracts,  84,  note  7. 

()•)  Harris  v.  Clark,  3  Comst.  93,  118;  Cowpcrthwaitc  «.  Sheflicld,  1  Sandf.  416, 
8  Comst.  243  ;  Winter  v.  Drury,  1  Scld.  525  ;  Marine  &  Fire  Ins.  Bank  v.  Jaunecy,  3 
Sandf  257  ;  Chapman  r.  White,  2  Sold.  412  ;  Whcclcr  v.  Stone,  ♦  Gill.  38. 


CH.  IX.]  WHAT    CONSTITUTES   ACCEPTANCE.  29> 

the  drawee  liable  to  the  payee  for  not  accepting  the  draft. (5) 
But  it  would  seem  that,  if  a  person  should  write  to  a  factor  that 
he  had  sent  him  certain  goods  for  sale,  and  drawn  a  bill  on  him 
on  the  credit  of  the  goods  to  a  certain  amount,  the  factor,  if  he 
received  the  consignment,  would  be  bound  to  accept  the  bill. 

The  question  still  remains  whctlier  the  payee  of  the  bill  would 
have  a  right  of  action  against  tlie  factor  as  an  acceptor  for  money 
had  and  received  to  his  use,  on  the  ground  that  the  acceptance 
of  the  consignment  was  equivalent  to  a  promise  to  accept.  We 
should  hold  him  so  liable,  on  the  ground  that  by  accepting  the 
consignment  he  had  made  a  contract  with  the  drawer  to  accept 
the  bill,  and  that  this  contract  being  for  the  benefit  of  a  third 
person,  this  person  might  bring  an  action  for  the  breach  of  the 
contract.  (^) 

As  a  note,  although  made,  only  takes  effect  when  it  is  deliv- 
ered, the  same  thing  is  true  of  an  acceptance.  This  there- 
fore is  revocable  until  the  bill  is  delivered  to  the  holder  or  his 
agent  who  presents  it  for  acceptance, (m)  although  it  seems  to 
have  been  held  otherwise  formerly. (z;)  If  the  acceptance  is  in 
any  of  the  ways  which  we  have  seen  to  be  equivalent  to  the 
usual  acceptance,  and  the  bill  is  not  in  the  hands  of  the  acceptor, 
then,  of  course,  delivery  by  him  cannot  be  necessary,  for  it  is  not 
practicable,  and  it  would  seem,  therefore,  that  such  an  acceptance 
must  be  irrevocable.  Certainly  it  would  be  so  after  any  holder 
had  received  the  assurance  of  it,  and  was  justified  in  regarding 
the  bill  as  an  accepted  one,  and  as  his  property. (i^?)  The  accept- 
ance of  a  bill  payable  so  many  days  after  sight  takes  effect  from 
its  date,  and  not  from  the  time  of  presentment,  nor  does  the  doc- 
trine of  relation  apply  in  such  cases  ;  and  in  the  computation  of 
the  time  the  day  of  the  date  is  excluded. (.-c) 


(s)  Grant  v.  Austen,  3  Price,  58 ;  New  York  &  Virginia  State  Bank  v.  Gibson,  5 
Ducr,  574.     See,  contra,  Corser  v.  Craig,  1  Wash.  C.  C.  424. 

(t)  We  are  not  aware  that  this  precise  question  has  been  decided,  but  it  would  seem 
to  follow  from  the  principles  stated  in  the  text.     See  Carnegie  v.  Morrison,  2  Met.  381. 

(u)  Cox  V.  Troy,  5  B.  &  Aid.  474. 

(y)  Thornton  v.  Dick,  4  Esp.  270  ;  Tummer  v.  Oddie,  cited  6  East,  200.  See  Ben- 
tinck  V.  Dorrien,  id.  199  ;  Raper  v.  Birkbeck,  15  id.  17. 

{w)  Grant  v.  Hunt,  1  C.  B.  44. 

{x\  Mitchell  v.  Degrand,  1  Mason,  176. 


'2^2  NOTES  AND   BILLS.  [CH.  IX. 


SECTION   II. 

PROMISE  TO  ACCEPT. 

The  question  has  frequently  arisen,  under  what  circumstances 
a  promise  to  accept  is  equivalent  to  an  acceptance.  The  general 
principles  which  determine  the  answer  to  this  question  are  these. 
On  the  one  hand,  it  must  frequently  happen  in  mercantile  busi- 
ness that  persons  who  are  arranging  for  a  future  transaction,  and 
seeking  to  ascertain  what  secnrity  or  what  resources  they  may 
have,  inquire  whether  certain  bills  wliich  enter  into  the  arrange- 
ment are  to  be  accepted,  and,  learning  that  they  are  to  be  so,  rely 
upon  them  in  a  way  which  would  make  disappointment  disas- 
trous. But,  on  the  other  hand,  they  must,  at  their  own  peril,  dis- 
criminate between  answers  or  statements  which  merely  give  in- 
formation, and  those  which  constitute  or  imply  a  definite  promise. 
For  it  is  only  upon  this  last  class  of  statements  that  the  law  au- 
thorizes them  to  rely,  on  the  ground  that  a  refusal  of  the  law  to 
recognize  and  enforce  such  promises  would  be  very  embarrassing 
to  mercantile  business.  Between  these  two  classes  of  cases  it 
may  sometimes  be  difficult  to  discriminate,  and  this  difficulty 
may  sometimes  appear  to  give  to  the  law  an  uncertainty  which 
belongs  to  the  fact. 

The  law  of  England  on  this  subject  seems  to  differ  somewhat 
from  the  law  of  America.  In  the  former  country  it  was  for  some 
time  uncertain  whether  a  parol  promise  to  accept  a  non-existing 
bill  was  valid  as  an  acceptance  under  any  circumstances ;  but 
the  later  authority  is  that  it  is  not  so  valid. (y)     Nor  would  a 

(y)  The  case  of  Pillans  v.  Van  Mierop,  3  Burr.  1663,  has  been  cited  as  authority  for 
the  doctrine  that  a  parol  promise  to  accept  a  bill  to  be  drawn  was  a  valid  acceptance, 
yet  it  is  doubtful  whether  it  sustains  it.  It  is  authority  to  show  tliat  there  may  be  an 
acceptance  before  tlie  bill  is  drawn,  and  it  is  not  clear  what  else  it  actually  decides. 
In  Pierson  v.  Dunlop,  Cowp.  .571,  the  qualification  is  added,  that  a  written  promise 
must  be  accompanied  by  circumstances  which  mi^jlit  induce  a  third  ])nrty  to  take  the 
bill.  Mason  v.  Hunt,  1  Doug.  296,  and  Miln  v.  Prcst,  4  Camp.  393,  adopt  similar  views. 
In  Johnson  r.  Collings,  1  East,  98,  the  point  actually  decided  was,  that  a  parol  prom- 
ise, where  no  third  party  was  induced  thereby  to  take  the  bill,  was  not  binding  as  an 
acceptance.  The  language  used  by  Lord  Kenyan  in  his  decision  is,  however,  general ; 
"that  a  ])roniise  to  accept  a  bill  before  it  is  drawn  is  not  equally  binding  as  if  made 
afterwards."  The  decision  in  the  Bank  of  Ireland  ».  Archer,  11  M  «&  W.  383,  is, 
that  a  j)arol  promise  to  accept  is  not  an  acceptance,  even  where  the  holder  discouuted 


CII.  IX.]  PROMISE   TO   ACCEPT.  293 

written  promise  to  accept  such  a  bill  now  be  held  equivalent  to 
accc})tancc  in  any  case,  the  terms  of  the  statute  1  and  2  Geo.  IV. 
c.  78,  of  course  precluding  all  question  as  to  inland  bills. (c^)  A 
parol  j)roinisc  to  accept  an  existing  foreign  bill  is  still  considered 
equivalent  to  an  acceptance,(rt)  and  the  same  must  be  true  of  a 
written  promise,  which  will  enure  to  the  benefit  of  the  holder, 
even  if  made  after  the  maturity  of  the  bill,  and  though  he  was 
not  induced  thereby  to  take  it.(/;)  The  promise  may  be  given  to 
the  drawer,  or  to  any  other  party  to  the  bill  after  it  has  been  in- 
dorsed away,  or  to  a  person  by  whose  direction  and  on  whose 
account  the  bill  was  drawn,  though  not  a  party  to  it.(c)  And  it 
seems  to  be  regarded  as  so  entirely  the  equivalent  of  a  regular 
acceptance,  that  the  drawer  cannot  revoke  it,  even  with  the  con- 
sent of  the  promisee,  though  no  party  to  the  bill  had  notice  of 
the  acceptance. (fi?) 

In  America  there  appears  to  be  a  conflict  of  authority  as  to 
whether  a  parol  promise  to  accept  a  bill  to  be  drawn  is  equivalent 
to  acceptance.  On  principle,  we  should  say  that  it  ought  not  to 
be  so  considered ;  [e)  but,  adopting  the  language  of  Marshall, 
C.  J.,  in  the  case  in  which  the  Supreme  Court  of  the  United 
States  unanimously  determined  the  limitations  to  the  rule,  we 
should  state  it  to  be  the  rule  of  American  law,  that  a  written 
promise  to  accept  a  non-existing  bill,  made  within  a  reasonable 
time  before  the  date  of  the  bill,  describing  it  in  terms  not  to  be 


the  bill  on  the  faith  of  such  promise.  The  language  of  Baron  Parke  is  likewise  gen- 
eral, and  it  seems  to  be  admitted  that  the  decision  would  have  been  the  same  had  the 
promise  been  written.  See  the  opinion  of  eminent  English  counsel  in  Russell  v.  Wig- 
gin,  2  Story,  213. 

(z)  "No  acceptance  of  any  inland  bill  of  exchange  shall  be  sufficient  to  charge  any 
person,  unless  such  acceptance  be  in  writing  on  such  bill,  or,  if  there  be  more  than  one 
part  of  such  bill,  on  one  of  the  said  parts  " 

(a)  Mendizabal  v.  Machado,  6  Car.  &  P.  218,  affirmed  3  Moore  &  S.  841  ;  Picrson 
V.  Dunlop,  2  Cowp.  .571  ;  Miln  v.  Prest,  4  Camp.  393. 

{b)  Wynne  v.  Raikes,  5  East,  514  ;  Clarke  v.  Cock,  4  id.  57  ;  Powell  v.  Monnier, 
1  Atk.  611. 

(c)  Grant  v.  Hunt,  1  C.  B.  44  ;  Fairlce  v.  Herring,  3  Bing.  625,  11  J.  B.  Moore,  520. 

{d)  Grant  v.  Hunt,  1  C.  B.  44. 

'e)  Kennedy  v.  Geddes,  8  Port.  Ala.  263.  In  Williams  r.  Win.ans,  2  Green,  N.  J. 
339,  a  parol  promise  to  accept  a  bill  to  be  drawn  was  held  valid,  and  in  Bank  of  Michi- 
gan V.  Ely,  17  Wend.  508,  510,  Nelson,  C.  J.  said,  that  it  was  well  settled  that  "  a  parol 
promise  to  accept  a  future  bill  was  not  binding,  unless  the  bill  was  taken  by  the  holder 
upon  the  faith  and  credit  of  such  promise,"  referring  to  Ontario  Bank  v.  Worthington, 
12  Wend.  593. 

25* 


294  NOTES   AND   BILLS.  [CH.  IX. 

mistaken,  is,  if  shown  to  one  who  takes  it  on  the  faith  of  such 
writing,  a  virtual  acceptance. (/)  It  seems  also  that  the  bill 
should  be  payable  on  demand,  or  at  a  fixed  time  after  date,  and 
not  after  sight,  so  that  there  may  be  a  certain  time  from  which 
the  days  are  to  be  counted. (o^) 

(/)  So  held  in  Coolidge  v.  Payson,  2  Wheat.  66,  2  Gallis.  233.  See  also  Schim- 
melpennich  v  Bayard,  1  Pet.  264  ;  Boyce  v.  Edwards,  4  id.  Ill  ;  Wildes  v.  Savage, 
1  Story,  22  ;  Russell  v.  Wiggin,  2  id.  213  ;  Bayard  v.  Lathy,  2  McLean,  462  ;  Storcr 
V.  Logan,  9  Mass.  55  ;  Carnegie  v.  Morrison,  2  Met.  381  ;  Kennedy  v.  Geddes,  8  Port. 
Ala.  263,  3  Ala.  581  ;  Carrollton  Bank  r.  Tayleur,  16  La.  490;  Vance  v.  Ward,  2 
Dana,  95  ;  Parker  v.  Greele,  2  Wend.  545,  5  id.  414.  In  Boyce  v.  Edwards,  4  Pet. 
Ill,  a  letter  written  two  years  before  the  bill  was  drawn,  and  not  referring  to  that  par- 
ticular bill,  was  held  no  acceptance.  In  Wilson  v.  Clements,  3  Mass.  1,  two  years  in- 
tervened between  the  promise  and  drawing  the  bill,  and  it  was  held  no  acceptance  oi; 
that  account.  The  bill  must  be  taken  on  the  credit  of  the  promise.  M'Evcrs  v.  Ma- 
son, 10  Johns.  207  ;  Ontario  Bank  v  Worthington,  12  Wend.  593.  In  Read  v.  Marsh, 
5  B.  Mon.  8,  the  language  is  somewhat  ambiguous,  but  it  is  conceived  that  the  court 
did  not  intend  to  lay  down  the  rule,  that  a  promise  to  accept  a.  future  bill,  not  taken 
on  the  credit  of  the  promise,  operated  as  an  acceptance.  In  Goodrich  v  Gordon,  15 
Johns.  6,  a  letter  containing  the  following  instructions  from  the  owner  of  a  vessel  to 
the  master,  —  "  You  will  endeavor  to  ransom  the  vessel  as  low  as  possible,  not  to  ex- 
ceed $  2,000,  your  draft  on  me  will  be  honored,"  —  was  held  tantamount  to  tlic  accept- 
ance of  a  bill  subsequently  drawn  for  that  amount.  In  Parker  v.  Greele,  2  Wend.  545, 
tlic  terms  of  the  letter  were,  "  I  have  no  objection  to  accepting  for  you  at  three  and 
four  monihs."  This  was  held  to  authorize  a  draft  for  the  whole  sum  at  four  months, 
and  the  holder  was  allowed  to  recover  without  showing  what  the  terms  proposed  were, 
or  that  they  were  complied  with.  This  case  was  affirmed  in  5  Wend.  414,  by  a  vote  of 
14  to  8.  There  was  a  disagreement  as  to  the  burden  of  proof  with  regard  to  showing 
what  the  terms  were,  and  a  compliance  with  them.  Also  some  of  the  Senators  held  that 
there  should  have  been  two  bills  drawn,  one  at  three  and  the  other  at  four  months, 
each  for  half  the  whole  amount.  It  was  also  thought  that  the  promise  did  not  come 
within  the  rule,  that  the  bill  should  be  drawn  in  terms  not  to  be  mistaken.  In  Bank 
of  Michigan  v  Ely,  17  Wend.  508,  the  words  of  the  letter  were  :  "  You  can  make  drafts 
on  me  due  in  August  next,  to  the  amount  of  $  10,000.  Make  them  in  sums  of  $  1,000 
each,  and  spread  the  time  of  their  payment  through  the  month."  Only  five  bills  were 
drawn.  The  holder  took  drafts  on  the  faith  of  the  letter,  and  sued  the  defendant  as 
acceptor.  The  letter  was  treated  as  an  acceptance.  In  Ulster  Co.  Bank  v.  McFar- 
lan,  5  Hill,  432,  tlie  letter  contained  the  following  :  "  I  hereby  authoriA>  you  to  draw  on 
me  at  ninety  days,  from  time  to  time,  for  such  amounts  as  you  may  require,  provided 
that  the  whole  amount  running  and  unpaid  shall  not  exceed  $  3,000."  This  was  held 
to  be  a  sufficient  promise,  although  it  will  be  seen  that  the  bills  were  not  specified, 
cither  as  to  number,  amount,  or  date.  In  a  subsequent  suit  between  the  same  parties, 
3  Denio,  553,  it  appears  to  have  been  conceded  by  the  counsel  that  there  was  an  acce|)t- 
ance,  but  Senator  Hand  in  a  dictum  denied  this,  stating  that  "the  promise  must  point 
to  the  |iarti(ular  bills,  and  describe  them  in  terms  not  to  bo  mistaken."  Senators 
Spencer  and  Talcott  affirmed  its  correctness. 

(;/)  Wildes  r  Savage,  1  Story,  22  In  this  case  Stori/,  J.  said  :  "  It  docs  not  ap- 
pear to  me  that  the  doctrine  ever  was  ajiplieable,  or  could  be  applied,  to  any  bills  of 
exchange,  excejit  such  as  were  payable  on   demand,  or  at  a  lixed  limc  afterdate. 


CH.  IX.]  PROMISE   TO   ACCEPT.  295 

Expressions  of  decided  re<i;ret  that  tliis  "  doctrine  of  virtual 
acceptance"  was  ever  established,  luive  frequently  been  used.(/t) 
But  the  rule  above  stated  seems  now  to  be  part  of  the  commer- 
cial law  of  the  country  ;  and  in  the  notes  we  have  endeavored  to 
illustrate  by  the  cases  the  way  in  which  the  rule  lias  been  ap- 
plied, and  the  modifications  which  it  has  undergone. 

The  rules  of  law  on  this  subject  have  been  frequently  applied 


Where  hills  arc  drawn  payahle  at  so  many  days  after  sight,  it  is  impracticable  to  ajiply 
the  doctrine,  for  there  remains  a  future  act  to  be  done,  —  the  presentment  and  siglit  of  tiie 
bill  before  the  period  for  whicli  it  is  to  run,  and  at  which  it  is  to  become  payable,  can 
commence,  whether  it  be  accepted  or  dislionored.  How  can  the  time  be  calculated 
upon  such  a  bill  before  it  is  presented  1  If  a  letter  is  written  promising  to  accept  a 
non-existing  bill  to  be  thereafter  drawn  at  six  months'  sight,  when  is  the  acceptance  to 
be  deemed  made  ?  At  the  time  of  the  bill  1  Certainly  not,  for  that  would  be  at  war 
with  the  obvious  intent  of  the  parties,  which  plainly  is  that  the  acceptance  shall  be  on 
a  future  sight  of  the  bill.  If  it  is  said  that  the  acceptance  is  to  be  treated  as  made 
when  the  bill  is  actually  presented  for  acceptance,  and  it  is  dishonored  by  the  drawee,  it 
is  as  plain  that  we  set  up  a  prior  intent  or  promise  against  the  fact.  Upon  what 
ground  can  a  court  say,  where  a  party  jiromises  to  do  an  act  in  future,  such  for  ex- 
ample as  to  accept  a  bill  when  it  shall  be  drawn  and  presented  to  him  at  a  future  time, 
that  ills  promise  overcomes  his  act  at  that  time,  —  that  his  refusal  to  perform  his 
promise  amounts  to  a  performance  of  it  1  It  is  quite  another  question  whether  the 
Irolder  who  has  taken  such  a  bill  upon  the  faith  of  such  promise  may  not  have  some 
other  remedy,  either  at  law  or  in  equity,  for  this  breach  of  it,  against  the  jtromisor. 
My  judgment  is,  that  the  doctrine  of  a  virtual  acceptance  of  a  non-existing  bill,  by  a 
prior  ](romise  to  accept  it,  when  drawn,  has  no  application  to  a  bill  drawn  payaltle  at 
some  fixed  period  after  sight,  for  it  amounts  to  no  more  than  a  promise  to  do  a  future 
act ;  I  have  looked  into  the  authorities,  and  I  do  not  find  in  any  one  of  them  that  the 
bill  drawn,  and  to  which  the  doctrine  was  applied,  was  a  bill  drawn  payable  at  or  after 
sight" 

(h)  Lord  Kenyan,  Johnson  v.  Collings,  1  East,  98  :  '-It  is  much  to  be  lamented 
that  anything  has  been  deemed  to  be  an  acceptance  of  a  bill  of  exchange  besides  an 
express  acceptance  in  writing ;  but  I  admit  that  the  cases  have  gone  beyond  that  line, 
and  have  determined  that  there  may  be  a  parol  acceptance  ;  that  perhaps  was  going  too 
far,  and  I  am  not  disposed  to  carry  them  to  the  length  now  contended  for,  and  to  say 
that  a  promise  to  accept  a  bill  before  it  is  drawn  is  equally  binding  as  if  made  after- 
wards." "  Admitting  a  promise  to  accept  before  the  existence  of  the  bill  to  operate  as 
an  actual  acceptance  of  it  afterwards,  was  carrying  the  doctrine  of  implied  acceptances 
to  the  utmost  verge  of  the  law."  Slonj,  J.,  Wildes  v.  Savage,  1  Story,  22 :  "  It  is 
perhaps  to  be  lamented  that  the  doctrine  of  such  virtual  acceptances  ever  was  estab- 
lished, and  if  the  question  had  been  entirely  new,  I  am  well  satisfied  that  it  would  not 
have  been  recognized  as  fit  to  be  promulgated  by  the  Supreme  Court,  it  being  at  once 
unsound  in  policy  and  full  of  inconvenience.  But  that  court  yielded,  as  did  the  judge 
who  decided  the  case  in  the  Circuit  Court,  Coolidge  v.  Payson,  2  Wheat.  66,  to  what 
seemed  at  that  time  the  true  result  of  the  English  authorities  upon  an  important 
"ractical  commercial  question.  I  am  not  sorry  to  find  that  professional  opinion  has 
settled  down  in  England  against  the  doctrine,  although  there  is  no  pretence  to  say  that 
up  to  this  very  hour  tliere  has  been  any  formal  decision  in  Westminster  Hall  against  it." 


2'J6  NOTES   AND    BILLS.  [CH.  LX. 

to  thf\  acceptance  of  bills  of  exchange  by  a  previous  letter  of 
credit  authorizing  them  to  be  drawn.  "Where  the  bills  are  spe- 
cifically described  in  the  letter,  drawn  within  a  reasonable  time 
from  the  date,  and  taken  on  the  credit  thereof,  they  would  come 
under  the  terms  of  the  rule  which  we  have  already  stated ;  but 
some  authorities  have  gone  still  further,  and  held  that  such  a  let- 
ter would  be  regarded  as  an  acceptance  of  all  bills  drawn  by  vir- 
tue of  it,  and  coming  within  its  terms,  though  not  described  by 
dates,  numbers,  or  amounts. (i)  As  upon  a  point  of  this  kind 
uniformity  is  specially  desirable,  a  general  adoption  might  be 
wished  of  the  limitations  upon  anticipated  acceptance  i)y  promise 
which  have  been  adopted  by  the  Supreme  Court  of  the  United 
States.  We  should  greatly  prefer  saying  that  the  drawer  of  such 
a  bill  might  have  his  action  against  the  writer  of  the  letter  for  his 
refusal  to  accept,  and  also  that  the  holder  of  the  bill,  having  the 
letter  in  his  possession,  with  evidence  that  he  had  bought  or  re- 
ceived the  bill  on  the  credit  of  the  letter,  which  evidence  may 
be  by  indorsement  on  the  letter  or  otherwise,  should  be  consid- 
ered as  having  sufficient  privity  to  sustain  the  action  iu  his 
own  namc.(y) 


(/)  See  Parker  v.  Greelc,  2  Wend.  545,  5  Wend.  414  ;  Bank  of  Michi<,-an  v  Ely,  17 
Weud.  508  ;  Ulster  Co.  Bank  v.  McFarlan,  5  Hill,  432,  3  Denio,  553.  The  facts  in  these 
cases  are  stated  supra,  p.  294,  notcy".  Banor^'ee  v.  Hovey,  5  Mass.  1 1 ,  is  sometimes  cited 
as  authority  for  this  doctrine,  but  without  foundation,  as  is  conceived.  In  Storer  r. 
Logan,  9  id.  55,  the  bills  declared  on  were  both  specified  as  to  dates  and  amount  in  the 
letter.  In  Cai-nejj;ie  v.  Morrison,  2  Met.  381,  an  action  on  a  letter  of  credit  specifying 
no  bills,  the  court  said  that  there  was  "  no  .serious  ground  to  contend  that  the  under- 
taking of  the  defendants  was  such  an  agreement  to  accept  a  particular  specified  bill  as 
to  bring  it  within  the  authority  of  the  American  cases." 

(;)  The  opinions  of  Sir  W.  Foliett,  Sir  John  Bayley,  Sir  F.  Pollock,  and  M.  D. 
Hill,  in  1  Story,  26,  are  to  the  effect  that,  in  England,  no  action  whatever  can  be  main- 
tained on  a  letter  of  credit,  by  a  holder  of  a  bill  taken  on  the  faitli  of  the  letter,  because 
there  is  no  privity  of  contract  between  the  parties.  If  upon  such  high  authority  this 
may  be  regarded  as  the  law  in  England,  we  still  think  that  this  is  not  the  law  in  Amer- 
ica In  Carnegie  v.  Morrison,  2  Met  381,  the  question  was  elaborately  discussed  by 
Shaw,  C.  J.,  who  said  (p.  396)  :  "  The  objection  to  such  an  action  and  tlie  ground  of 
tliis  defence  arc,  that  the  immediate  parties  to  the  transaction  were  Bradford  on  the  one 
side,  and  the  defendants  on  the  other  ;  that  to  this  transaction  the  plaintifVs  were  stran- 
gers ;  and  tliat,  as  Bradford  acquired  some  right  under  it,  and  had  a  remedy  upon  it 
against  the  defendants,  their  contract  must  be  deemed  to  be  made  with  him,  and  not 
with  llie  plaintiffs.  But  this  position  presu|)poses  that  the  same  instrument  may  not 
constitute  a  contract  between  the  original  parties,  and  also  between  one  or  both  of  them, 
and  others  who  may  subscfjuentiy  assent  to,  and  l)ccome  interested  in,  its  execution  ; 
an  assumption  quite  too  broad  and  unlimited,  which  the  law  docs  not  warrant.     In  a 


CH.  LX.]  PROMISE   TO   ACCEPT.  297 

The  question  lias  arisen  as  to  how  far  a  written  authority  given 
by  the  drawer  to  a  party  to  draw  bills  upon  him  can  be  consid 
ered  as  an  acceptance.     The  same  principle  should  apply  here, 
we  apprehend,  as  in  the  case  of  letters  of  credit.     Where  the  in- 


common  bill  of  exchange,  the  drawer  contracts  with  the  payee  that  the  drawee  will 
accept  the  bill ;  with  the  drawee,  that,  if  he  docs  accept  and  pay  the  bill,  he,  the 
drawer,  will  allow  the  amount  in  account,  if  he  has  funds  in  the  drawee's  hands ; 
otherwise,  that  he  will  reimburse  him  the  amount  thus  paid.  He  also  contracts  with 
any  person  who  may  become  indorsee,  that  he  will  pay  him  the  amount,  if  the  drawee 
does  not  accept  and  pay  the  bill.  The  law  creates  the  privity.  So  in  the  familiar  case 
of  money  had  and  received,  if  A  deposits  money  with  B  to  the  use  of  C,  the  latter  may 
have  an  action  ajj:ainst  B,  thouc-h  they  are  in  fact  stran^jcrs.  But  if  C,  not  choosing  to 
look  to  B  as  his  debtor,  calls  upon  A  to  pay  him,  notwithstanding  such  deposit,  (as  he 
may.)  and  A  pays  him,  A  shall  have  an  action  against  B  to  recover  back  tlie  moncj' 
deposited,  if  not  repaid  on  notice  and  demand.  The  law  operating  upon  the  act  of  the 
parties  creates  the  duty,  establishes  tlie  privity,  and  implies  the  promise  and  obligation 
on  which  the  action  is  founded.  Hall  v.  Marston.  17  Mass.  575.  So  in  regard  to  a 
very  common  transaction ;  when  one  deposits  money  in  a  bank  to  the  credit  of  a  third 
person,  and  forwards  him  a  certificate,  or  other  evidence  of  the  fact,  the  bank  is  regarded 
as  coming  under  an  obligation  to  i)ay  the  money  to  the  person  to  whose  credit  it  is  thus 
deposited.  So  it  is  held  in  England,  when  the  depositary  assents  to  receive  the  money, 
though  there  is  no  consideration  moving  from  the  plaintiff  to  the  defendant.    Lilly  v. 

Hays,  5  A.  &  E.  548 (P.  402  :)    It  seems  to  have  been  regarded  as  a  settled  point, 

ever  since  rcjiorts  have  been  published  in  this  State,  rather  than  as  an  open  question  to  be 
discussed  and  considered.  Tlie  position  is,  that  where  one  person,  for  a  valuable  con- 
sideration, engages  with  another,  by  simple  contract,  to  do  some  act  for  the  benefit  of  a 
third,  the  latter,  who  would  enjoy  the  benefit  of  the  act,  may  maintain  an  action  for  tlie 
breach  of  such  engagement."  The  learned  judge  then  referred  to  Felton  v.  Dickinson, 
10  Mass.  287  ;  Arnold  v.  Lyman,  17  id.  400  ;  Dutton  v.  Poole,  1  Vent.  318  ;  and  resumed 
(p.  40.3) :  "  The  court  arc  of  opinion  that  the  promise  of  the  defendants,  made  by  the  let- 
ter of  credit,  in  the  present  case,  comes  within  the  principle  of  the  cases  cited.  Brad- 
ford was  indebted  to  the  plaintiffs,  and  was  desirous  of  paying  them  ;  and  he  must 
resort  to  some  mode  of  remittance.  He  had  funds  either  in  cash  or  credit  with  the  de- 
fendants, and  entered  into  a  contract  with  them  to  pay  a  sum  of  money  for  him  to  the 
plaintiffs.  And  upon  the  faith  of  that  undertaking,  he  forbore  to  adopt  other  meas- 
ures to  pay  the  plaintiffs'  debt.  He  gave  the  plaintiffs  notice  of  what  he  had  done, 
and  sent  them  the  instrument  as  authentic  evidence  of  the  fact.  They  assented  to  and 
affirmed  it,  as  an  act  done  in  their  behalf,  and  gave  the  defendants  notice  thereof,  and, 
confornnibly  to  the  terms  of  the  letter  of  credit,  drew  their  bills  on  the  defendants. 
The  refusal  to  accept  was  a  breach  of  the  promise  thus  made,  and.  in  the  event  that 
happened,  the  insolvency  of  Bradford,  the  plaintiffs  lost  their  debt.  It  would  be 
in  vain  to  say  that  this  promise  was  not  made  for  the  benefit,  or,  according  to  the 
terms  of  some  of  the  cases,  for  the  interest  of  the  plaintiffs.  The  result  shows  that,  by 
a  compliance  with  the  jjlain,  literal  terms  of  their  promise,  on  the  part  of  the  defend- 
ants, the  plaintiffs  would  have  received  their  debt.  By  a  refusal  to  perform  that  prom- 
ise, they  have  lost  it.-  They  are  therefore  damnified  to  tlie  full  amount  of  the  sum  for 
vrhich  the  credit  was  given."  Murdock  v.  Mills.  11  Met  5  ;  Barney  v.  Newcomb,  9 
Cush.  46.  This  doctrine  is  fully  approved  by  Story,  J.,  Russell  i\  Wiggin,  2  Story, 
213  ;  Wl'rtis  V.  Savage,  I  id.  22  ;  Baring  v.  Lyman,  id.  396  ;  Wallace  v.  Agry,  4  Ma- 


298  KOTES   AND    BILLS.  [CH.  IX. 

strument  intelligibly  describes  the  bills  to  be  drawn,  and  an 
unreasonable  time  has  not  elapsed  between  its  date  and  that  ol* 
the  bills,  and  they  are  taken  on  the  credit  of  the  writing,  we 
should  hold  that  this  was  a  virtual  acceptance  of  bills  drawn  in 
conformity  with  its  terms.  And  if  the  bills  are  not  described 
with  sufficient  particularity  to  constitute  acceptance,  our  opinion 
is  that  an  action  may  be  maintained  for  breach  of  the  promise  to 
accept,  as  in  the  case  of  letters  of  credit  just  mentioned.  Some 
cases  lay  down  the  broad  rule,  that  an  authority  given  by  A  to  B 
to  draw  bills  on  him  is  virtually  an  acceptance  of  any  l)ills  drawn 
within  such  authority;  but  we  believe  that  in  most  of  them  the 
language  is  more  comprehensive  than  the  cases  themselves  war- 
rant, or  else  that  the  distinction  between  an  action  on  the  bill  as 
an  accepted  bill,  and  one  on  the  failure  to  perform  the  promise, 
is  not  sufficiently  attended  to.(/t)  In  this  country  a  parol  or 
written  promise  to  accept  an  existing  bill  is  treated  as  accept- 
ance, unless  it  be  made  insufficient  by  statutory  provision.  (/) 

son,  336  ;  Boyce  v.  Edwards,  4  Pet.  Ill,  in  which  the  distinction  between  an  action 
on  a  bill  as  an  accepted  bill,  and  one  founded  on  the  breach  of  a  promise  to  accept,  is 
fully  pointed  out ;  Townsley  v.  Sumrall,  2  id.  170.  See  the  cases  cited  supra,  p.  294, 
note/;  also  Adams  /;.  Jones,  12  Pet.  207  ;  Edmonston  r.  Drake,  5  id.  624  ;  Lawrason  v. 
ilason,  3  Cranch,  492.  Carrollton  Bank  v.  Taylcur,  16  La  490,  seems  to  hold  that  an 
action  can  be  maintained  by  the  holder,  unless  the  letter  is  addressed  to  lijm.  In  Birck- 
head  v.  Brown,  .5  Hill,  634,  it  was  held  that,  if  the  letter  is  special,  that  is,  addressed  to  a 
particular  individual,  he  alone  has  the  right  to  sue  for  breach  of  promise  to  accept, 
and  that  a  third  party,  who  has  advanced  money  on  the  credit  of  it,  cannot,  for  want 
of  privity  of  contract.     This  case  was  affirmed  by  a  vote  of  11  to  11,  in  2  Donio,  37.5. 

(k)  See  Van  Rcimsdyk  v.  Kane,  1  Gallis.  630  ;  Banorgee  v.  Hovcy,  ^  Mass  23  ; 
Mayhcw  v.  Prince,  11  id.  55  ;  Wallace  v.  Agry,  4  Mason,  336  ;  Lewis  i'.  Kramer,  3 
Md.  26.5  ;  Beach  v.  State  Bank,  2  Ind.  488.  The  cases  of  Ulster  Co.  Bank  v.  McFar- 
lan,  .5  Hill,  432,  3  Denio,  .5.53,  and  Bank  of  Michi<,'an  v.  Ely,  17  Wend.  .508,  cited  supm, 
p.  294,  note  f,  ai-e  authority  for  the  doctrine  that  a  written  authority  is  a  virtual  ac- 
ceptance. In  Ulster  Co.  Bank  v.  McFarlan,  it  was  decided  that  an  authority  to  draw 
at  ninety  days  was  an  authority  to  draw  at  ninety  days  after  si<;Iit,  and  not  after  date. 
But  in  Barney  v.  Newcomb,  9  Cush.  46,  it  was  held  that  one  authorized  to  draw  on 
another  "  at  ten  or  twelve  days,"  may  exercise  Ills  own  discretion  whether  to  draw  after 
sight,  or  after  date ;  and  the  correctness  of  the  decision  in  Ulster  Co.  Bank  v,  McKarlan  is 
denied.  The  court  say :  "  The  oi)inion  of  the  Supreme  Court  (of  New  York)  was  placed 
upon  the  jrround  that  the  drawee,  by  authorizin;;  a  draft  at  ninety  days,  intended  to  se- 
cure himself  a  credit  of  ninety  days  after  notice  that  the  liill  was  drawn  ;  but  if  dniwu 
ninety  flays  after  date,  he  might  not  have  any  time,  as  the  holder  miglit  not  i)resent  tho 
bill  till  it  came  to  maturity.  The  answer  to  that  is,  if  he  meant  so,  he  should  have  said 
60  ;  and  as  he  did  not  say  so,  there  is  nothing  to  show  that  he  meant  so,  as  it  is  as  usna} 
to  draw  after  date  as  after  sight  " 

(/)  Edson  i;.  Fuller,  2  Foster,  183 ;  Grant  v.  Shaw,  16  Mass.  341  ;  Ward  v.  A'lcn,  3 
Met.  53. 


I 


CH.  IX.]  PROMISE   TO   ACCEPT.  299 

Among  the  more  specific  application  of  the  principles  which 
roguhite  acceptance  by  previous  authority,  the  following  may  be 
mentioned.  Authority  to  an  agent  to  arrange  an  unsettled  affair 
and  draw  on  his  principal  for  necessary  sums,  is  a  virtual  accept- 
ance of  a  draft  made  with  the  knowledge  and  assent  of  such 
agent ;  but  the  drawer  cannot  substitute  a  new  draft  in  favor  of 
another  payee,  without  the  consent  of  the  drawee  or  his  agent. (w) 

If  authority  is  given  by  two  or  more  persons  to  draw  on  them, 
or  either  of  them,  and  they  promise  jointly  and  severally  to  hold 
themselves  accountable  for  the  acceptance  and  payment  of  such 
drafts,  the  signers  are  jointly  and  severally  bound  to  tlie  payment 
of  acceptances  made  by  one  of  them.(y^)  Autiiority  from  the 
directors  of  a  corporation  to  the  treasurer  to  accept  drafts,  must 
be  strictly  proved,  but  when  proved,  a  valid  consideration  and  a 
proper  purpose  for  acceptance  may  be  presumed,  (o) 

In  a  case  where  a  firm  in  England  sent  out  an  agent  to  Amer- 
ica, with  authority  to  draw  bills  on  the  firm,  sell,  and  discount 
them,  which  he  did,  but  the  firm  became  bankrupt  before  the  bills 
arrived  in  England,  it  was  held  that  no  proof  could  be  made  by  an 
indorsee  of  a  bill,  as  the  authority  to  the  agent  did  not  amount  to 
an  implied  acceptance. (;?)  If  the  authoiity  be  upon  terms  or  con- 
ditions, compliance  with  them  is  necessary  to  enable  the  holder  to 
recover  of  the  party  authorizing  the  draft  to  be  drawn. ((/) 

If  the  draft  or  bill  already  exists,  a  parol  promise  to  accept  it 
must  be  on  a  dis^tinct  consideration,  or  it  bears  no  force,  either  as 
an  acceptance  or  as  a  promise  to  accept ;  if  it  rests  on  a  consid- 
eration, it  is  a  good  acceptance. (r)  If  on  presentation  of  the  bill 
the  drawee  refuses  to  accept,  but  promises  the  holder  to  pay  the 
sum  for  which  it  was  drawn  on  the  day  on  which  it  is  payable, 
this  is  not  an  acceptance,  even  if  the  drawee  have  funds  of  the 
drawer  in  his  hands,  and  ought  in  justice  to  have  accepted  the 
bill. (5)     If,  however,  the  bill  were  drawn  on  a  specific  fund,  so 

(m)  Gates  v.  Parker,  43  Maine,  .544. 

(n)  Miehiji-an  State  Bank  v.  Peck,  28  Vt.  200. 

(o)  Partridije  v.  Badger,  25  Barb.  146. 

(p)  Ex  parte  Bolton,  3  Mont.  &  A.  367. 

(q)  IMurdock  v.  Mills,  11  Met.  5  ;  Ulster  Co.  Bank  v.  McFarlan,  5  Hill,  432,  3  De- 
nio,  553. 

(r)  Strohecker  v.  Cohen,  1  Spcers,  349. 

(s)  Lutf  ;;.  Po|)e,  5  Hill,  413,  7  id.  577.  The  holder  of  a  l.ill  pnyal.lr  at  si-ht  pre- 
sented it,  but  the  drawee  refused,  saying  that  he  had  no  t'limls,  biii  afurwards  .-aid  ha 


300  NOTES   AND   BILLS.  [CH.  IX. 

as  not  to  amount  to  a  negotiable  bill  of  exchange,  the  draft  and 
promise  might  then  not  only  hold  the  drawee,  but  work  an  equi- 
table assignment  of  the  fund.(^)  In  some  places  there  is  a  cus- 
tom for  banks  to  certify  checks  drawn  upon  them  as  good.  This 
has  been  treated  as  a  promise  to  pay  such  checks  on  presentment, 
and  equivalent  to  acceptance,  rendering  the  bank  liable  as  ac- 
ceptor, as  in  the  case  of  bills  of  exchange. (z^) 


SECTION    III. 

CONDITIONAL   AND    QUALIFIED  ACCEPTANCES. 

In  the  chapter  upon  the  essentials  of  a  promissory  note,  and 
the  section  on  the  certainty  of  the  fact  of  payment,  we  have  seen 
that  if  the  promise  to  pay  be  upon  condition,  or  be  dependent  on 
a  contingency,  the  instrument  is  not  a  negotiable  promissory 
note.  And  it  has  also  been  said  repeatedly,  that  an  acceptor  of 
a  bill  stands  in  the  same  relation  to  it  as  the  promisor  of  a  note. 
Here,  however,  is  an  important  difference.  Not  only  may  a 
drawee,  as  we  have  seen,  be  held  as  acceptor  on  a  promise  to 
accept,  but  if  he  actually  accepts  on  a  condition  or  a  conthigency, 
this  acceptance  may  be  valid  and  sufficient. 

The  law  on  this  subject  is,  however,  somewhat  difficult,  and  in 
some  respects  not  altogether  certain. 

In  tlie  first  place,  we  would  remark,  that  the  subject  of  con- 
ditional acceptance  is  closely  connected  with  that  of  a  promise 
to  accept,  a  conditional  acceptance  being  no  more  in  fact  than  a 
promise  to  accept  upon  tiie  happening  of  some  future  event  or 
circumstance.     Whether  the  focts  proved  in  any  case  amount  to 

would  answer  it  at  the  commencement  of  the  next  quarter.  The  holder  did  not  agree 
to  wait,  remarkini,'  that  he  would  send  it  back  to  the  drawer.  The  hill,  however,  was 
not  sent  ba<'k,  l)Ut  presented  again  hy  the  same  holder  some  time  nflcr  the  time  men- 
tioned. Ilfhl,  that  these  facts  did  not  amount  to  an  acceptance  or  a  contract;  and 
that  evidence  that  the  drawee  had  funds  at  the  time  of  refusal  was  irrelevant.  Peck 
V.  Cochian,  7  Pick.  34.  The  drawee  of  an  order  for  a  seaman's  share  of  the  proceeds 
of  a  whalinj;  voyage  declined  to  accept,  hut  took  the  order,  promising  to  try  and  save 
the  amount  for  the  payee,  if  the  drawer  con.sented.  The  drawer,  on  his  return,  refused 
to  assent.     Ilihl,  no  acceptance  or  assignment.    Parkhurst  v.  Dickcrson,  21  Pick.  SO?. 

(t)  So  said  in  Luflf  u.  Pope,  .5  Hill,  413;  Harrison  v.  Williamson,  2  Edw.  430 
See,  for  an  illustration  of  this  principle,  Berly  r.  Taylor,  5  Hill,  577. 

(u)  See  post,  Chapter  on  Checka. 


CH.  IX.]  CONDITIONAL   AND    QUALIFIED   ACCEPTANCES.  301 

an  absolute  or  to  a  conditional  acceptance,  is  a  question  of  law  for 
the  court  to  determine. (?;)  It  has  been  held  that  an  acceptance, 
absolute  on  its  face,  cannot  be  shown  to  be  conditional,  by  parol, 
between  the  immediate  parties  thereto,  as  this  would  be  to  con- 
tradict the  terms  of  the  written  contract ;  (w)  but  if  the  accept- 
ance is  ambiguous,  it  may  be  explained  by  parol. (.r)  An  absolute 
acceptance  may  be  qualified  by  an  express  condition  in  a  sepa- 
rate and  simultaneous  writing,  because  both  instruments  are 
regarded  as  forming  but  one  contract ;  but  this  cannot  affect  a 
third  party,  who  took  the  bill  without  knowledge  of  the  con- 
dition.(y)  A  conditional  acceptance  becomes  at  once  absolute 
on  the  performance  of  the  condition,  but  it  should  still  be  set 
forth  in  the  declaration  as  conditional,  with  an  averment  of  per- 
formance,(s)  the  burden  of  proof  being  upon  the  plaintiff  to 
show  such  performance. (a) 

The  following  are  some  of  the  instances  in  which  an  accept- 
ance has  been  held  conditional.  A  promise  to  pay  when  certain 
goods  consigned  to  the  drawee  are  sold  ;  (b)  when  in  cash  for  the 
cargo  of  Ship  Thetis  ;  (c)  to  accept  when  a  navy  bill  is  paid  ;  (d) 
to  pay  as  remitted  from  thence  at  usance  ;  (e)  that  the  bill  shall 


(»)  Sproat  i;.  Matthews,  1  T.  R.  182,  Willes,J.  dissenting.  BuUer,  J.  said  :  "  Wliat- 
ever  may  liave  been  the  doubts  formerly  of  what  amounted  to  acceptance,  I  conceive  it 
is  the  sole  province  of  the  court  to  decide  wiiether  this  is  an  absolute  or  a  conditional 
acceptance."     Edson  v.  Fuller,  2  Foster,  183  ;  Barnet  v.  Smith,  10  id.  256. 

(iv)  Heaverin  v.  Donnell,  7  Sniedes  &  M.  244.  Adams  v.  Wordlcy,  1  M.  &  W. 
374,  was  an  action  by  the  drawer  against  the  acceptor.  The  plea  averred  an  agreement, 
not  stated  to  be  in  writing,  which  set  forth  that  the  plaintiff  agreed  not  to  call  uj)on  the 
defendant  till  an  action  against  a  third  party  was  determined.  The  plaintiff  demurred, 
and  the  demurrer  was  sustained.  Parke,  B.  said  :  "  At  present  it  is  enough  to  say  that 
you  seek,  by  a  parol  contemporaneous  agreement,  to  alter  the  absolute  engagement 
entered  into  by  the  bill."  By  Lord  Abinger,  C.  B. :  "  It  would  be  very  dangerous  to 
allow  a  party  to  alter  in  such  a  manner  the  absolute  contract  on  the  face  of  a  bill  of 
exchange."  In  Hoare  v.  Graham,  3  Camp.  57,  Lord  Ellenhorowjh  said  :  "  This  would 
be  incorporating  with  a  written  contract  an  incongruous  parol  condition,  which  is  con- 
trary to  first  principles." 

(r)  Swan  v.  Cox,  1  Marsh.  176. 

(y)  Bowerbank  v.  Monteiro,  4  Taunt.  844  ;  Mason  v.  Hunt,  1  Doug.  297. 

(2)  Langston  v.  Corney,  4  Camp.  176  ;  Ralli  v.  Sarell,  1  Dow.  &  R.  N.  P.  33 ;  Swan 
r.  Cox,  1  Marsh.  176. 

(a)  Read  v.  Wilkinson,  2  Wash.  C.  C.  514 ;  Gammon  w.  Schmoll,  5  Taunt.  344. 

(6)  Smith  V.  Abbot,  2  Stra.  1152. 

(c)  Julian  c.  Shobrooke,  2  Wils.  9. 

(d)  Pierson  v.  Dunlop,  2  Cowp.  571. 

(e)  Banbury  v.  Lissett,  2  Stra.  1211. 
VOL.  I.  26 


302  NOTES  AND   BILLS.  [CH.  EL 

be  paid  when  funds  arrive  from  France  ;  (/)  to  renew  an  accept- 
ance till  sufficient  effects  are  received  from  the  estate  of  A  ;  (g) 
to  pay  if  a  certain  house  should  be  given  up  to  the  drawee  before 
a  day  named  ;  (h)  a  statement  that  the  bill  will  not  be  accepted 
until  the  ship  with  the  wheat  arrives  ;  (i)  that  the  drawee  cannot 
accept  till  stores  are  paid  for  ;  (j)  that  the  drawee  did  not  know 
whether  the  ship  on  whose  cargo  the  bill  was  drawn  would  come 
to  London,  and  therefore  he  could  not  accept,  with  a  subsequent 
statement  that  the  bill  would  be  paid,  even  if  the  ship  was 
lost ;  (k)  an  agreement  to  accept  on  consideration  that  goods 
shall  be  consigned  to  the  acceptor  to  answer  the  bill,  together 
with  a  policy  of  insurance  upon  them  ;  (/)  a  promise  by  the 
drawee  to  the  holder,  that,  if  he  would  get  back  the  bill  after  it 
had  been  protested  and  returned,  it  should  be  paid  ;  (m)  to  pay 
if  the  consignment  was  sold  when  the  bill  became  due  ;  (n)  an 
acceptance  according  to  a  certain  contract. (o) 

Acceptance  is  sometimes  made  "  when  in  funds."  Of  course 
the  acceptor  is  then  liable  only  when  he  has  funds.  In  one  case 
it  was  held  that  this  meant  when  the  drawee  has  funds  which 
the  drawer  has  a  present  right  to  demand  and  receive,  and  did 


(/)  Mendizabal  v.  Macluido,  6  Car.  &  P.  218,  3  Moore  &  S.  841. 

(7)  Bowerbank  v.  Moiiteiro,  4  Taunt.  844. 

(h]  Swan  v.  Cox,  1  Marsh.  176. 

(i)  Mihi  V.  Prcst,  4  Camp.  393. 

(  ;')   I'icrson  v.  Dunlop,  2  Cowp.  571. 

(/.•)  Sproat  V.  Matthews,  I  T.  11.  182.  In  this  case  tlie  court  hckl  tliat  this  was  a 
conilitional  acceptance,  depending  upon  either  one  of  the  two  events  mentioned,  as  it 
was  evident  from  what  passed,  that  there  was  no  intent  to  accept  unless  the  ac- 
ceptor should  have  funds  in  his  hands  with  which  to  reimburse  hiinself;  that,  if 
tlic  ship  came  to  London,  he  would  have  the  disposal  of  the  cargo  ;  if  she  was  lost,  he 
had  in  his  possession  a  policy  of  insurance,  a  lien  which  would  provide  him  witii 
sufficient  funds. 

(/)  Ma-son  v.  Hunt,  1  Doug.  297. 

(w)  Grant  v.  Siiaw,  16  Mass.  341.  In  Anderson  v.  Hick,  3  Camp.  179,  a  hill  drawn 
on  the  defendants  was  returned  unaccepted;  but  one  of  the  defendants  afterwards  said 
to  the  plainliff:  "If  you  will  .send  the  bill  to  the  counting-house  again,  I  will  give 
directions  for  its  being  accepted."  No  proof  was  oflercd  that  the  bill  was  again  sent  to 
the  defendants'  counting-house,  it  being  contended  that  the  fact  amounted  to  an 
absf)lute  acceptance;  but  Lord  Ellmhorouijh  said:  "This  was  only  a  conditional 
promise  to  aecept,  and  could  not  operate  as  an  accc[)tance  till  the  bill  was  .sent  back  to 
the  countintr-honse."  Tlie  idaintilf  was  accordingly  nonsuited.  So  also  Co.\  v.  Cole 
man,  Cas.  Temp.  Ilardw.,  London  od  ,  75. 

(«)  Browne  r.  Coif,  1  McCord,  408. 

(0)  Kellogg  V.  Lawrence,  Hill  &.  D.  .332. 


CH.  IX.]  CONDITIONAL   AND    QUALIFIED    ACCEPTANCES.  303 

not  apply  to  wages  for  daily  labor  earned  after  acceptance,  and 
needed  for  the  daily  subsistence  of  the  laborer. (/?) 

The  acceptance  of  an  order  payaljle  "if  in  funds,"  is  regarded 
as  an  admission  by  the  acceptor  that  he  has  funds,  and  he  cannot 

(p)  Wintermute  v.  Post,  4  N.  J.  420.  Haines,  J.  said  :  "  The  terra  '  when  in  funds  ' 
literally  means  when  the  aeceptor  is  in  the  possession  of  cash  which  the  drawer  has  a 
present  rii^ht  to  demand  and  receive,  or  to  appropriate  by  his  bill,  whether  such  funds 
be  the  product  of  labor,  or  of  commodities  furnished,  of  goods  sold,  or  money  deposited 
or  collected,  or  any  other  source.  And  such,  in  my  judgment,  is  its  fair  commercial 
and  judicial  construction,  and  any  other  would  make  the  meaning  of  the  words  to  depend 
upon  the  peculiar  circumstances  of  each  particular  case,  and  would  produce  doubt  and 
uncertainty,  and  tend  to  impair  the  value  and  the  convenience  of  negotiable  paper,  and  to 

the  promotion  of  strife  and  litigation It  is  not  to  be  supposed  that  the  parties 

meant  that  the  pittance  of  each  day's  work  should  be  withheld  from  the  necessities  of 
the  laborer's  fiimily  till  they  should  accumulate  to  the  amount  of  the  bill.  The  law 
does  not  require  it,  and  political  economy  and  common  humanity  forbid  it."  In  Hun- 
ton  V.  Ingraham,  1  Strob.  271,  it  was  held  that  where  a  factor  accepts  a  planter's  order, 
payable  wlieu  in  funds,  this  is  a  promise  to  pay  out  of  the  first  funds  which  shall  come 
into  his  hands  ;  and  the  drawee  cannot  apply  them  first  to  the  payment  of  a  debt  due 
him  from  the  drawer,  as  this  would  be  "adding  another  condition  to  the  acceptance, 
and  the  acceptance  would  then  mean,  they  would  pay  the  order  when  they  had  funds  in 
hand  over  and  above  the  amount  of  their  debt."  It  seems  that  the  factor  may,  however, 
deduct  expenses  incuiTcd  by  him,  with  reference  to  the  particular  consignment.  Ibid. 
In  Campbell  v.  Pettengill,  7  Grcenl.  126,  "funds"  was  held  to  mean  cash,  and  not 
good  and  available  demands  or  securities  till  converted  into  money.  The  court  also  ex- 
press an  opinion  that,  although  the  drawer  is  not  entitled  to  notice  when  he  has  no  funds 
in  the  drawee's  hands,  yet  where,  instead  of  funds,  the  drawee  has  available  demands,  no- 
tice must  be  given  to  the  drawer.  In  Andrews  v.  Baggs,  Minor,  173,  it  was  held,  that, 
in  order  to  recover  of  the  drawer  on  a  bill  accepted  when  in  funds,  it  is  necessary  to 
prove  that  the  acceptor  had  received  funds  sufficient  to  pay  the  bill  according  to  its 
terms,  demand  by  the  holder,  and  notice  of  non-payment  to  the  defendant.  Sec  Gallery 
V.  Prindle,  14  Barb.  186;  Knox  v.  Ileeside,  1  Miles,  294.  In  Swanscy  c.  Bieck,  10 
Ala.  5.33,  it  was  held,  that,  if  the  administrator  of  the  drawee  receives  the  funds,  he  is 
liable  on  tlie  deceased's  acceptance.  A  general  acceptance  of  an  order  payable  out  of 
a  particular  fund  imposes  upon  the  plaintiff  the  obligation  of  showing  that  the  particu- 
lar fund  was  received  by  the  acceptor.  Owen  v.  Lavine,  14  Ark.  389.  Where  A 
placed  a  note  in  B's  hands,  for  which  B  is  to  account,  and  afterwards  A  draws  on  B 
an  order  payable  out  of  the  first  proceeds  of  the  note,  and  B  accepts  ;  it  is  no  defence 
for  B,  that  the  note  was  put  into  his  hands  before  the  order  was  drawn.  Bird  v.  McEl- 
vaine,  10  Ind.  40.  An  acceptance  of  an  order  to  pay  $  200  out  of  the  first  money  of  the 
drawer  received  by  the  drawee  on  account  of  a  newspaper  establishment,  binds  the 
acceptor  to  pay,  from  time  to  time,  on  reasonable  request,  as  money  is  received,  and  a 
judgment  against  him  for  a  part  of  the  sum,  on  his  refusal  to  pay  on  request,  is  no  bar 
to  a  subsequent  action  for  a  further  sum  received  by  him  after  the  commencement  of 
the  first  action.  Shaw,  C.  J.  said  :  "  The  question  is,  whether,  by  a  fair  construction, 
the  acceptance  in  the  present  case  is  an  undertaking  to  perform  one  duty  at  one  time, 
and  then  to  terminate,  or  whether  it  is  a  stipulation  to  do  more  than  one  It  is  an 
acceptance  and  undertaking  to  pay  the  plaintiff  $  200  out  of  the  first  money  belonging 
to  the  drawer,  which  the  aeceptor  should   receive  on  account  of  the  Eastern  Star,  a 


304  NOTES   AND    BILLS.  [CH.  LX. 

afterwards  allege  a  want  of  consideration  in  an  action  by  the 
holder.  {^) 

An  absolute  acceptance  of  an  order  payable  on  a  contingency 
is  the  same  in  legal  effect  as  if  the  instrument  had  all  the  requi- 
site certainties  of  a  bill  of  exchange  with  a  conditional  acceptance. 
Thus,  an  absolute  acceptance  of  an  order  payable  in  the  goods 
of  the  drawer,  or  the  proceeds  thereof,  amounts  to  an  agreement 
to  pay  the  order  according  to  its  tenor,  and,  in  order  to  recover 
on  such  acceptance,  the  holder  must  aver  and  prove  that  the 
drawee  had  in  his  hands  either  the  goods  specified  or  the  pro- 
ceeds. (/•)  An  acceptance  of  an  order  for  the  payment  of  money 
out  of  tlio  amount  to  be  advanced  to  the  drawer  when  certain 
houses,  which  he  was  then  erecting  on  the  drawee's  land,  should 
be  so  far  completed  as  to  have  the  plastering  done  according  to 
a  contract  between  the  parties,  is  conditional ;  and  the  acceptor's 
liability  is  dependent  upon  the  contingency  of  the  work  being 
completed  according  to  the  contract,  nor  will  such  acceptance 
become  absolute  by  a  subsequent  cancellation  of  the  contract  by 
the  drawee  and  the  assignee  of  the  drawer. (5)  Compliance  with 
the  condition  is  in  the  nature  of  a  condition  precedent,  and  if 
the  condition  is  not  complied  with,  the  acceptance  is  of  no  effect. 


newspaper  establishment,  transferred  by  the  drawer  to  the  acceptors.  It  is  obviously  a 
conditional  undertaking.  Was  the  whole  obligation  to  be  void,  if  the  amount  collected 
should  not  reach  S  200,  and  all  riglit  to  demand  anything  suspended  until  the  full 
sum  should  be  received  ?  We  cannot  consider  this  the  true  meaning.  It  appears  to 
us  that  the  intention  was,  that  the  acceptors  should  pay  to  the  amount  of  $  200,  if  so 
much  should  be  collected  ;  otherwise,  such  part  of  the  sum  as  should  be  collected.  This 
seems  to  have  been  the  construction  adopted  by  the  acceptors,  by  their  jiaying  a  part, 
and  yielding  to  a  judgment  for  a  part.  But  if  payment  was  not  to  be  suspended  until 
tJic  full  $  200  should  be  collected,  and  as  it  might  never  be  collected,  then  the  conclu- 
sion of  law  must  be,  that  such  part  as  should  be  collected  should  be  paid  in  reasonable 
time,  if  requested.  No  other  reasonable  construction  can  be  put  u]3on  it.  It  is  a  gen- 
eral rule,  tiiat  when  a  duty  is  to  be  done,  and  no  time  fixed,  it  must  be  done  in  a 
reasonable  time.  Taking  tliis  legal  conclusion,  in  connection  with  the  terms  of  the 
acceptance,  it  is  an  undertaking  to  pay  out  of  a  jiarticular  fund,  from  time  to  time  a.s 
received,  on  reasonable  retiuest.  The  payment,  therefore,  of  part  of  the  anu)unt  does 
not  bar  the  claim  for  the  balance  when  collected  ;  and  we  think  the  contract,  being  to 
pay  from  time  [to  time]  on  request,  is  a  contract  to  be  j)erformed  at  difierent  times,  and 
thiTefore  a  judgment  for  one  breach,  in  not  paying  a  part,  is  not  a  bar  to  an  action  on 
another  breach,  in  not  paying  on  demand  the  balance  admitted  to  have  been  collected." 
Perry  v.  Harrington,  2  Met.  368. 

(7)  Kr  int)l<!  /).  Lull,  .-}  McLean,  272. 

(r)   Atkinson  r.  Manks,  1  Cowcn,  691. 

(«)  Newhall  v.  Clark,  3  Cush.  376. 


CII.  IX.J  CONDITIONAL   AND    QUALIFIED   ACCEPTANCES.  305 

Thus,  where  an  agreement  was  made  to  accept,  in  considera- 
tion that  goods  of  a  certain  vahie  should  be  consigned  to  the  ac- 
ceptor to  answer  the  bill,  and  goods  of  a  less  value  were  sent,  the 
acceptance  was  held  not  to  be  binding. (^)  And  where  a  person 
agreed  to  accept  provided  the  goods  against  which  the  bill  was 
drawn  should  be  sold  before  the  maturity  of  the  bill,  and  they 
were  attached  by  a  creditor  of  the  drawer,  while  in  the  drawee's 
hands,  it  was  held  that  there  was  no  acceptance. (w)  It  would 
seem  that,  even  if  the  drawee  himself  should,  by  any  act,  pre- 
vent the  contingency  from  happening,  he  could  not  be  liable  as 
acceptor.  The  remedy  of  the  holder  would  probably  be  by  a 
special  action  on  the  case,  and  the  sura  to  be  recovered  would  not 
be  the  debt  due  by  the  acceptance,  but  damages  for  the  wrongful 
act  of  the  acceptor  in  preventing  the  completion  of  the  contract, 
by  reason  of  which  the  holder  has  sustained  the  loss  of  the  debt. 
The  burden  of  proof  would  be  upon  the  plaintiff  to  show  that  tlie 
defendant  caused  the  prevention  of  the  completion  of  the  con- 
tract, and  any  evidence  on  the  part  of  the  acceptor  to  show  that 
the  drawer  had  failed  or  been  unable  to  perform  the  contract,  by 
reason  of  death,  sickness,  insolvency,  or  other  inability,  would  be 
competent  to  rebut  the  charge. (y) 

Whether  an  acceptance  payable  at  a  particular  place  is  a  con- 
ditional acceptance,  or  not,  has  been  much  discussed,  and  the 
opinions  of  many  learned  judges  have  been  given  on  both  sides 
of  the  question.  The  Court  of  King's  Bench,  in  England,  for  a 
long  time  held  sucli  an  acceptance  not  to  be  conditional ;  that 
the  word  "  Accepted "  expressed  the  contract,  and  the  words 
"  payable  at  a  certain  place  "  were  in  effect  a  memorandum 
which  was  inserted  as  a  kind  of  accommodation  between  the  par- 
ties, to  which  the  holder  of  the  bill  was  not  bound  to  attend,  (t^?) 


(t)  Mason  v.  Hunt,  1  Doug.  297. 

(u)  Browne  v.  Coit,  1  McCord,  408. 

(v)  SItaw,  C.  J.,  Newhall  v.  Clark,  3  Cush.  376. 

{lo)  The  first  case  was  that  of  Smith  v.  De  hi  Fontaine,  Holt,  N.  P.  366,  note  (1785), 
where  Lord  Mansfield,  at  Nisi  Prius,  held  such  an  acceptance  absolute,  and  proof  of  de- 
mand at  the  place  specified  unnecessary.  The  same  was  held,  at  Nisi  Prius,  by  Lord 
Ellenhorougb,  in  Lyon  v.  Sundius,  1  Camp.  423  (1808)  ;  and,  in  reference  to  a  note,  in  an 
action  against  the  maker,  by  Bai/Iey,  J.,  in  Wild  i\  Ilennards,  id.  425,  note  (1809),  and 
by  Lord  EUenboroucih,  in  NichoUs  v.  Bowes,  2  id.  498.  These  cases  were  followed  by 
Fenton  v.  Goundry,  13  East,  459  (1811),  wliere  this  rule  was  laid  down  by  an  authori- 
tative decision  of  the  King's  Bench,  Lord  Ellenborough,  C.  J.  and  Grose  and  Bayley, 

Vol.  L— U 


sot  NOTES   AND    BILLS.  [CH.  IX 

The  Court  of  Common  Pleas,  on  the  other  hand,  held  that  such 
an  acceptance  was  conditional ;  that  all  the  words  taken  together 
expressed  the  contract,  which  was,  that  the  acceptor  promised  to 
pay,  provided  the  bill  was  presented  at  the  place  mentioned,  and 
that  presentment  at  the  place  stipulated  must  be  averred  and 
proved. (.r)     The  point  was  finally  settled,  at  law,  by  the  House 


JJ.  delivering  opinions.  In  Hodge  v.  Fillis,  3  Camp.  463  (1813),  the  drawer  drew 
the  bill  payable  in  London,  and  the  acceptor  accepted  it  payable  at  a  banker's  there. 
Lord  Ellenliorough  held  that  an  averment  of  presentment  at  the  banker's  was  material, 
and  must  be  proved.  Gihhs,  C.  J.  followed  these  decisions  in  Head  v.  Seweli,  Holt, 
363  (1816),  but  there  seems  to  be  some  doubt  about  the  correctness  of  this  report.  The 
cases  in  the  King's  Bench,  with  reference  to  promissory  notes  payable  at  a  specified 
place,  seem  hardly  to  be  consistent  with  the  doctrine  laid  down  by  the  same  court  in  ref- 
erence to  bills  of  exchange.  In  Sanderson  v.  Bowes,  14  East,  500,  Dickinson  v.  Bowes, 
16  id.  110,  and  Howe  v.  Bowes,  id.  112,  it  was  decided  that  a  demand  of  payment  of  a 
note  at  the  place  specified  was  necessary,  and  the  following  distinction  was  taken :  that 
the  place,  being  specified  in  the  body  of  the  note,  is  incorporated  in  the  original  form  of 
the  instrument,  while  tlie  place  designated  in  the  acceptance  was  no  part  of  tiic  original 
conformation  of  tlie  bill  itself.  This  distinction  can  hardly  be  sustained.  Lord  Eldon, 
in  his  opinion  in  Rowe  v.  Young,  2  Bligh,  391,  infra,  note  y,  said  with  reference  to  it : 
"  Somehow  or  otiier  it  seems  to  ha\e  been  assumed,  that,  not  being  in  the  body  of  the 
bill,  it  is  not  to  be  considered  as  being  in  the  body  of  the  acceptance,  a  conclusion 
which  it  is  extremely  difficult,  I  think,  to  adopt."  Bai/lej/,  J.,  in  the  same  case,  said  : 
"I  am  free  to  confess  that  I  doubt  the  propriety  of  those  decisions  (Sanderson  v. 
Bowes,  Dickinson  v.  Bowes,  Howe  v.  Bowes),  although  I  was  myself  a  party  to  them, 
and  I  think  it  more  manly  to  say  that  I  consider  my  opinion  in  those  cases  erroneously 
formed,  than  to  attempt  to  distinguish  those  cases  from  Fenton  v.  Goundry  by  the  use  of 
nice  and  subtle  differences."  Another  distinction  taken  is,  that  the  one  class  of  decis- 
ions refers  to  promissory  notes,  and  the  other  to  bills  of  exchange  ;  but  this  ground  is 
hardly  tenable.  Another  is,  that  the  notes  were  jjayablc  on  demand,  while  the  bills  or 
acceptances  were  payable  at  a  particular  time,  and  that  in  the  latter  case  tlie  defend- 
ant may  readily  make  an  averment  that  he  was  ready  at  the  time  and  place  to  pay, 
and  that  the  other  jiarty  was  not  ready  to  receive  the  money ;  but  in  tlie  former,  as  the 
time  of  payment  depends  entirely  upon  the  pleasure  of  the  holder  of  the  note,  the  de- 
fendant cannot  set  up  such  a  defence.  On  this  ground,  if  any,  it  is  api)rehended  that 
the  two  classes  of  cases  may  be  distinguished.  In  Parker  i\  Gordon,  7  East,  SS."),  it 
was  decided  that  presentment  for  j)aymont  of  a  bill  accepted  payable  at  the  acceptor'8 
banker's  after  banking  hours  was  insufficient,  and  no  evidence  of  dishonor,  so  as  to 
charge  the  drawer.  In  this  case  no  presentment  to  the  acceptor  himself  was  shown, 
and  it  was  an  action  against  the  drawer;  so  that  a  distinction  may  well  be  drawn  be- 
tween this  case  and  the  others  mentioned  above.  See  also  Elford  v.  Teed,  1  Maule  & 
S.  28.  In  Rodic  v.  Campbell,  3  Camp  247,  an  action  by  an  indorsee  of  a  note,  pay- 
able at  a  specified  place  thirty-one  days  after  date,  against  an  indorser.  Lord  Klloi- 
boroui/h  held  it  to  be  a  fatal  variance  not  to  state  that  the  note  was  so  payable  in  the 
declaration. 

(r)  The  first  case  in  the  Common  Bench  was  Ambrose  v.  Ilopwood,  2  Taunt.  61 
(1809),  an  action  against  the  drawer,  where  it  was  held,  tliat,  if  the  declaration  alleges 
a  bill  to  be  accepted  payable  at  tlie  house  of  certain  persons  at  a  particular  jilace,  it 


CH.  EX.]  CONDITIONAL   AND   QUALIFIED   ACCEPTANCES.  307 

of  Lords,  who  decided  that,  if  a  bill  of  exchange  is  accepted  pay- 
able at  the  house  of  A  &  Co.,  it  is  a  conditional  acceptance, 
restricting  the  place  of  payment,  and  the  holder  is  bound  to  pre- 
sent the  bill  at  that  house  for  payment  in  order  to  charge  the 
acceptor  of  the  bill.  If  he  brings  an  action  upon  the  bill  against 
the  acceptor,  he  must  in  his  declaration  aver,  and  on  the  trial 
prove,  that  he  made  such  presentment,  and  for  want  of  such 
averment  the  declaration  was  held  bad  on  demurrer,  thereby  re- 
versing the  judgment  of  the  King's  Bench. (y)     In  consequence 

must  aver  that  the  bill  was  presented  for  payment  at  that  plaee,  and  not  to  tho=e  per- 
sons generally.  Then  followed  Callaghan  v.  Aylctt,  3  id.  397,  2  Camp.  549  (1811), 
a  suit  by  the  drawer  against  the  acceptor,  which  decided  that,  if  a  bill  is  accepted  pay- 
able at  a  banker's,  it  must  be  presented  there  for  payment,  and  neglect  so  to  present  it 
discharges  the  acceptor.  The  next  case  was  Gammon  v.  Schmoll,  5  Taunt.  344  (1814), 
where  the  court  adhered  to  their  former  decisions,  notwithstanding  the  cases  in  the 
King's  Bench,  Heath,  Chambre,  and  Dallas,  JJ.  delivering  opinions.  The  case  of 
Bowes  V.  Howe,  id.  30,  in  the  Exchequer  Chamber  (1813),  sustained  the  decision  of  the 
King's  Bench  in  reference  to  promissory  notes,  but  reversed  it  on  another  point,  Mac- 
Donald,  C.  B.  delivering  the  opinion.  It  has  been  decided  in  Saunderson  v.  Judge,  2 
H.  Bl.  509,  Richards  v.  Milsington,  Holt,  364,  note,  Price  v.  Mitchell,  4  Camp.  200, 
Exon  I'.  Russell,  4  Maule  &  S.  505,  that  if  the  place  was  specified  in  a  memorandum 
at  the  foot  of  the  bill  or  note,  under  the  signature  of  the  maker  or  acceptor,  the  pay- 
ment was  not  conditional.  This  has  been  so  decided  since  the  Stat.  1  &  2  Geo.  IV. 
c.  78,  in  Williams  v.  Waring,  10  B.  &  C.  2,  5  Man.  &  R.  9,  and  it  was  held  in  Exoa  v. 
Russell,  4  Maule  &  S.  505,  that  a  description  of  a  note  with  such  a  memorandum  at  the 
foot,  as  payable  at  a  particular  place,  is  a  variance.  Contra,  Sproule  v.  Legg,  3  Stark. 
156.  But  if  the  declaration  merely  states  that  the  maker  made  the  note  payable  at  the 
place,  without  saying  that  it  was  so  payable  according  to  the  tenor  of  the  note,  this  does 
not  amount  to  a  misdescription,  and  may  be  rejected  as  superfluous.  Hardy  v.  Wood- 
roofe,  2  Stark.  319.  In  Trecothick  v.  Edwin,  1  id.  468,  Lord  Ellenhorough  held,  that,  if 
the  memorandum  is  printed,  it  must  be  considered  as  a  part  of  the  note,  having  been 
made  at  the  same  time.  But  qucere.  There  appears  to  have  been  no  doubt  but  that, 
in  cases  between  the  indorsee  and  drawer,  in  both  courts,  a  presentment  at  the  place 
designated  in  the  acceptance  was  necessary ;  so  where  the  place  was  specified  by  the 
drawer  in  the  body  of  the  bill.  Tindal,  C.  J.,  Gibb  v.  Mather,  8  Bing.  214.  See  Roche 
V.  Cami)bell,  3  Camp.  247. 

[y)  Rowe  p.  Young,  2  Brod.  &  B.  165,  2  Bligh,  391  (1820),  Lords  Eldon  and  Redes- 
•dale  delivering  opinions.  The  opinions  of  the  twelve  judges  had  been  taken  on  the 
following  points.  First,  whether  the  holder  was  bound  to  present  the  bill  at  the  place 
designated.  This  was  answered  in  the  affirmative  by  Dallas,  C.  J.,  Best,  Burrough, 
Park,  Richardson,  JJ.,  Garrow,  Wood,  BB. ;  in  the  negative  by  Abbott,  C.  J.,  Bay- 
ley,  Holroyd,  JJ.,  Richards,  C.  B.,  Graham,  B.  (7  —  5).  Second,  whether  it  is  neces- 
sary that  such  presentment  should  be  averred  in  the  declaration.  This  was  answered 
in  the  affirmative  by  Dallas,  C.  J.,  Burrough,  Park,  JJ.,  Wood,  B. ;  in  the  negative 
by  Abbott,  C.  J.,  Best,  Baylry,  Holroyd,  Richardson,  JJ.,  Richards,  C.  B.,  Garrow, 
Graham,  BB.  (4 — 8).  It  will  be  observed  that  the  case  was  decided  against  the 
opinions  of  the  majority  of  the  judges,  as  to  this  last  point.  The  ground  taken  by  those 
who  answered  in  the  negative  was,  that  the  acceptor's  readiness  to  pay  at  the  place 


308  NOTES  AXD    BILLS.  [CH.  IX. 

of  this  decision,  the  statute  1  &  2  Geo.  lY.  c.  78,  was  passed, 
reciting  that  the  practice  and  understanding  of  merchants  had 
been  contrary  to  this  decision.  It  enacted,  tliat  an  acceptance 
payable  at  a  particular  place,  without  further  expression,  shall  not 
be  deemed  a  conditional  acceptance  ;  but  if  it  is  payable  at  a 
specified  place  "  only,  and  not  otherwise  or  elsewhere^''  it  shall 
be  considered  conditional. (sr)     The  courts  in  this  country  hare, 


should  be  set  forth  by  him,  as  a  matter  of  defence,  in  a  special  plea  averring  that  fact. 
The  reason  for  sustaining  the  affirmative  was,  that  the  plaintiff  must  declare  upon  the 
contract,  and  must  aver  everything  material  that  the  contract  contains.  Third,  whether 
such  acceptance  was  conditional  or  not.  This  was  answered  in  the  affirmative  by  the 
same  judges  who  decided  the  affirmative  of  the  first  question  ;  in  the  negative,  by  those 
who  decided  the  negative  of  the  same.  Fourth,  whether  the  payee,  by  taking  an  ac- 
ceptance qualified  as  to  the  place  of  payment,  without  the  authority  or  consent  of  the 
drawer,  would  discharge  the  drawer,  so  that  the  payee  could  maintain  no  action  against 
him  upon  the  bill.  An  opinion  that  he  would  not  be  discharged,  unless  it  could  bo 
shown  that  he  was  injured  or  materially  inconvenienced,  was  expressed  by  Bayleti, 
Beat,  Bnrroufjh,  Park,  Richardson,  JJ.,  Garrow,  Wood,  BB. ;  that  no  action  could 
be  maintained  upon  the  bill,  by  Abbott,  C.  J.,  IJohoyd,  J.,  Richards.  C  B.  The  difti. 
culty  on  this  point  seemed  to  be,  whether  making  the  discliarge  of  the  drawer  depend 
upon  the  question  of  inconvenience  or  injury  would  not  be  introducing  too  lax  a  rule, 
and  give  rise  to  great  uncertainty,  and  hence  it  would  be  better  to  lay  down  the  rule, 
that  the  drawer  would  be  discharged,  in  all  such  cases,  unless  notice  was  sent  to  him. 
Some  of  the  judges  expressed  an  opinion  that  it  would  be  immaterial  if  the  place  speci- 
fied were  in  the  same  town  where  the  acceptor  lived  ;  otherwi.se  if  in  a  difterent  town. 
In  Rhodes  v.  Gent,  5  B.  &  Aid.  244,  the  acceptance  was  payable,  when  due,  at  a  particu- 
lar ])lace,  but  the  bill  was  not  presented  till  some  days  after  maturity.  The  acceptor 
was  still  held  liable,  having  sustained  no  injury  thereby.  Abbott,  C.J.  said  :  "  The  case 
of  Rowe  V.  Young  goes  the  length  of  holding  that  a  presentment  is  necessary  at  the 
particular  place  specified ;  and  perhaps  it  may  go  further,  and  may  exonerate  the  ac- 
ceptor in  case,  by  the  omission  to  present  in  time,  he  sustains  any  actual  prejudice; 
but  it  cannot  extend  to  a  case  like  the  present,  where  no  such  injury  is  proved  to  have 
arisen  in  consequence  of  the  omission  to  i)rescnt  the  bill  for  payment  when  due." 

(z)  This  statute,  called  Sergeant  Onslow's  act  by  Best,  C.  J.,  Selby  v.  Eden,  3  Bing. 
^11,  613,  has  been  held  to  apply,  in  the  case  of  bills,  to  actions  against  the  acceptor 
alone.  In  a  suit  against  tlie  drawer,  pVcsentment  at  the  place  designated  must  bo 
pro\-ed.  Gibb  v.  Mather,  8  Bing.  214,  1  Moore  &  S.  387,  2  Cromp.  &  J.  254.  Tindal, 
C  J.  said :  "  In  cases  between  the  indorsee  and  the  drawer,  upon  n  special  accept- 
ance by  the  drawee,  no  doubt  appears  to  have  existed  but  that  a  presentment  at  tho 
place  specially  designated  in  the  acceptance  was  necessary  in  order  to  make  the  drawer 
liable  u|)on  the  dishonor  of  the  bill  by  the  acceptor."  "  It  appears  to  us  that  the  stat- 
ute noitlior  intended  to  alter,  nor  has  it  in  any  manner  altered,  the  liability  of  drawers 
of  bills  of  exchange;  but  that  it  is  confined  in  its  operation  to  the  case  of  acceptors 
alone."  See  Kmblin  v.  Dnrtnell,  12  M.  &  W.  830.  It  has  been  decided,  that  where  the 
placr'  is  designated  in  the  body  of  the  bill,  an  acceptance  is  absolute,  unless  it  contains 
the  words  required  by  the  statute,  or  their  equivalent.  Selby  v.  Kden,  3  Bing.  611,  11 
,T.  B.  Moore,  .511  ;  Faylc  v.  Bird,  6  B.  &  C  531,  2  Car.  &  V.  .303,  9  Dow.  &  R.  639. 
where  Lord  Tmterdm  said  that  he  should  liave  entertained  some  doubt  whether  t'lc  casp 


en.  L\.]  CONDITIONAL   AND   QUALIFIED   ACCEPTANCES.  309 

with  the  exception  of  Louisiana  and  Indiana,  held  that  such  ac- 
ceptances were  not  conditional  ;  that  demand  of  payment  at  the 
place  specified  need  not  be  averred  by  the  plaintiff;  but  that  if 
the  acceptor  was  at  the  place  at  the  time  designated,  and  ready 
to  pay  the  money,  it  was  a  matter  of  defence  to  be  pleaded  on  his 
part,  which  defence,  however,  is  no  bar  to  the  action,  but  goes 
only  in  reduction  of  damages,  and  in  prevention  of  costs. (a)     If 

was  within  the  statute,  had  it  not  been  for  tlie  authoritv  of  Selby  v.  Eden.  In  Turner 
V.  Hayden,  4  B.  &  C  1,  6  Dow.  &  R  5,  Ryan  &  M.  215,  the  holder  of  a  hill  accepted 
payable  at  a  banker's,  the  words  "only,  and  not  elsewhere,"  being  omitted,  did  tiot 
present  it  tliere  for  payment,  and  the  banker  three  weeks  after  failed,  havinjj:  lield 
during  that  time  a  balance  in  favor  of  the  acceptor  above  the  amount  of  the  bill. 
It  was  held  that  the  acceptor  still  continued  liable,  although  he  was  subjected  to  the 
loss  of  the  money  by  the  omission  of  the  holder  to  present  the  bill  there  for  payment. 
So  Sebag  v  Abitbol,  4  Maule  &  S.  462,  decided  before  the  statute.  In  Sharp  c.  Bai- 
ley, 9  B.  &  C.  44,  4  Man.  &  R.  4,  the  drawer  made  the  bill  payable  at  his  own  bouse, 
and  it  was  held  that  the  jury  might  infer  from  this  fact  that  the  bill  was  an  accommo- 
dation bill,  and  notice  of  non-payment  by  the  acceptor  to  the  drawer  was  unnecessary. 
The  statute  applies  to  bills  made  payable  at  a  particular  place  by  the  act  of  the  drawer, 
as  well  as  where  rendered  so  payable  by  the  act  of  the  acceptor.  Selby  v.  Eden,  3 
Bing.  611  ;  Fayle  v.  Bird,  6  B.  &  C.  .531.  See  Halstead  v.  Skelton,  5  Q.  B.  86 ;  Blake 
».  Beaumont,  4  Man.  &  G.  7. 

(a)  This  point  has  been  decided  more  frequently  with  regard  to  the  makers  of 
promissory  notes  than  acceptors  of  bills  of  exchange,  yet  the  courts  make  no  difference 
between  them  in  this  respect.  In  U.  S.  Bank  v.  Smith,  11  Wheat.  171,  Thompson,  J. 
expressed  an  opinion  that  demand  at  the  place  need  not  be  averred,  but  there  was  no 
decision  on  this  question.  It  was  decided,  however,  in  Wallace  v.  M'Connell,  13  Pet. 
136,  where  the  cases  are  collected  and  commented  upon  at  length.  Judge  Story, 
Promissory  Notes,  §  228,  note,  says  that  he  dissented,  but  his  dissent  does  not  ap- 
pear in  the  ivport.  Other  cases  approving  this  doctrine  are  Covington  v.  Comstock, 
11  Pet.  43;  Brabston  v.  Gibson,  9  How.  263;  Thompson  v.  Cook,  2  McLean,  122; 
Silver  v.  Henderson,  3  id.  165  ;  Brown  v.  Noyes,  2  Woodb.  &  M.  75  ;  Martin  v.  Ham- 
ilton, 5  Harring.  Del.  314,  329;  Stowe  v.  Colburn,  30  Maine,  32  ;  Nichols  v.  Pool,  2 
Jones,  N.  Car.  23  ;  Foden  v.  Sharp,  4  Johns.  183;  Wolcott  v.  Van  Santvoord,  17  id. 
248;  Fitlcr  v.  Bekley,  2  Watts  &  S.  458;  Fairchild  v.  Ogdensl)urgh,  &c.  R.  Co,  15 
N.  Y.  337,  Denio,  C.  J.,  where  it  was  decided  that  the  defence  of  readiness  to  pay  at 
the  time  and  place  mentioned  goes  in  mitigation  of  damages  and  costs,  and  not  to  the 
cause  of  action  ;  Fleming  v.  Potter,  7  Watts,  380,  where  the  same  rule  was  applied  in 
case  of  a  note  payable  in  specific  articles.  See  Caldwell  v.  Cassid}^  8  Cowen,  271,  an 
action  against  the  maker  of  a  promissory  note,  in  which  a  plea  was  held  bad,  on  de- 
murrer, because  it  set  forth  this  defence  in  bar  of  the  action,  and  not  of  the  damages ; 
and  secondly,  for  not  showing  that  the  defendant  was  ready,  by  paying  the  money 
into  court.  Samge,  C.  J  said,  that  he  thought  an  account  of  demand  would  be  neces- 
sary in  case  of  a  note  payable  on  demand  at  a  particular  place,  but  in  Haxtun  v. 
Bishop,  3  Wend.  1,  he  decided  that  it  was  not.  Green  v.  Goings,  7  Barb  652.  See 
Ruggles  V.  Patten,  8  Mass.  480;  Carley  v.  Vance,  17  id.  389,  where  the  plea  was  held 
jad  for  want  of  profert ;  Payson  v.  Whitcomb,  15  Pick.  212  ;  Carter  v.  Smith,  9  Cash. 
o'21 ;  Eastman  v.  Fifield,  3  N.  H.  333  ;  Otis  v.  Barton,  10  id.  433  ;  Hart  v.  Green,  8 


310  NOTES   AND   BILLS.  [CH.  IS. 

a  bill  were  accepted  "  payable  only  at  such  a  place,"  it  would  be 
so  entirely  conditional  under  the  English  statutes,  that,  if  not  de- 
manded there,  the  acceptor  would  not  be  liable  at  all.  We  think 
this  should  be  the  rule  in  the  United  States ;  on  the  ground  that 
such  words  are  equivalent  to  "  Accepted,  provided  that,"  or  "  on 
condition  that "  ;  but  it  is  not  certain  that  a  bill  accepted  with 
the  word  "  only,"  or  possibly  with  express  words  of  condition, 
might  not  be  held  by  some  courts  as  binding  the  acceptor  to  the 
amount  of  the  bill,  but  discharging  him  from  interest  and  costs, 
if  he  had  funds  at  the  proper  place  at  the  maturity  of  the  bill, 
by  which  it  would  then  and  there  have  been  paid.  The  principle 
upon  which  any  such  decision  must  be  founded  is,  that  the  hav- 
ing the  funds  there  for  that  purpose  operates  as  a  tender  of  them. 


Vt.  191  ;  Eidred  v.  Hawes,  4  Conn.  465  ;  Jackson  v.  Packer,  13  id.  342;  Bond  r 
Storrs,  id.  412  ;  Bacon  v.  Dyer,  3  Fairf.  19  ;  Remick  v.  O'Kyle,  id.  340,  where  prcv 
sentment  was  averred  and  the  plaintiff'  was  allowed  to  recover  without  introducing 
evidence  to  support  it;  McKenney  v.  Whipple,  21  Maine,  98;  Gammon  v.  Everett, 
25  id.  66;  Lyon  v.  Williamson,  27  id  149  ;  Dockray  v.  Dunn,  37  id.  442  ;  Weed  v. 
Van  Houten,  4  Halst.  189  ;  Bowie  v.  Duvall,  1  Gill  &  J.  175  ;  Allen  i'.  Miles,  4  Har- 
ring.  Del.  234  ;  M'Nairy  v.  Bell,  1  Yerg.  502  ;  Mulherrin  v.  Hannum,  2  id.  81  ; 
Blair  v.  Bank  of  Tenn.,  11  Humph.  84  ;  Bank  of  Ky.  v.  Hickey,  4  Littoll,  225 ;  Conn 
V.  Gano,  1  Ohio,  483,  where  it  Avas  also  held  that  the  averment,  though  immaterial, 
yet,  if  made,  must  he  proved,  Pease,  J.  dissenting  ;  Butterfield  v.  Kinzic,  1  Scamm.  445 ; 
Armstrong  v.  Caldwell,  id.  546;  New  Hope  1).  B.  Co.  v.  Perry,  11  111.  467;  Irvine 
1-.  Witlicrs,  1  Stew.  Ala.  234  ;  Montgomery  v.  Elliott,  6  Ala.  701 ;  Wutkins  v.  Crouch, 
5  Leigh,  522;  Armistead  v.  Armistcads,  10  id.  512;  Sumner  v.  Ford,  3  Pike,  389; 
McKiel  );.  Real  Estate  Bank,  4  id.  592  ;  Pryor  v.  Wright,  14  Ark.  189 ;  Dougherty  v. 
Western  Bank,  13  Geo.  287  ;  Clarke  v.  Gordon,  3  Rich.  L.  311  ;  McKenzie  v.  Durant, 
9  id.  61  ;  Bank  of  S.  Carolina  v.  Flagg,  1  Hill,  S.  Car.  177  ;  Bank  of  N.  Carolina  v. 
Bank  of  Cape  Fear,  13  Ired.  L.  75 ;  Ilenshaw  v.  Liberty  M.  F.  &  L.  Ins.  Co.,  9  Misso.  333, 
where  the  note  was  payable  in  paper  currency  ;  Edwards  v.  Ilasbrook,  2  Texas,  578 ; 
Andrews  v.  Iloxie,  5  id.  171  ;  Games  v.  Manning,  2  Greene,  Iowa,  251,  where  it  was 
held  that  the  same  rules  were  applicable  in  case  of  a  note  payable  in  s|)ccitic  articles; 
Washington  v.  Planters'  Bank,  1  How.  Miss.  230;  Cook  v.  Martin,  5  Smcdes  &  M. 
379,  where  proof  of  an  averment  of  demand  at  the  place  was  held  unnecessary. 
Some  of  the  American  cases  hold  an  averment  and  proof  of  demand  necessary  in  the 
case  of  notes  payable  on  demand,  no  time  being  specified.  Thomjison,  J.,  Wallace  i'. 
M'Connell,  13  Pet.  143;  Bank  of  N.  Carolina  v.  Bank  of  Cape  Fear,  13  Ired.  L.  75; 
Armistead  v.  Armistcads,  10  Leigh,  512,  Slannrd,  J.,  who  said  that  this  principle 
would  extend  to  the  case  of  notes  payable  on  demand,  after  a  specified  time.  Suvage, 
C.  J.,  (y'aldwell  v.  Cassidy,  8  Cowen,  271.  The  cases  denying  tliis  are  McKenney  v. 
Whipple,  21  Maine.  98  ;  Gammon  i;.  ICverctt,  25  id.  66;  Ha.xtun  v.  Bishop,  3  Wend. 
1  ;  Montgomery  r.  Elliott,  6  Ala.  701  ;  Dougherty  v.  Western  Bank,  13  Geo.  287  ;  hut 
the  court  held  in  this  ea.sc  that  averment  and  demand  at  the  place  are  necessary  in 
the  case  of  a  bank-note  payable  on  demand  at  a  specified  place.  Qnare.  The  reason 
given  is  public  policy.     The  same  was  held  in  the  case  of  a  baiik-nole  in  Bank  of  N. 


CH.  IX.]  CONDITIONAL   AND   QUALIFIED  ACCEPTANCES.  311 

The  cases  which  we  have  been  considering  are,  as  our  notes 
show,  in  a  curious  state  of  conflict,  confusion,  and  uncertainty. 
A  great  number  of  fine,  subtile  distinctions  iiave  been  made  on 
a  comparatively  narrow  point,  and  it  seems  as  if  ingenuity  and 
acutencss  had  been  exerted  to  make  refinements  in  an  important 
commercial  question,  instead  of  an  endeavor  to  carry  out  the  real 
and  honest  intentions  of  the  contracting  parties,  and  to  produce 
uniformity  in  the  law  precisely  there  where  uniformity  is  emi- 
nently desirable. 

A  partial  or  a  qualified  acceptance  is  an  agreement  by  tlie  ac- 
ceptor to  pay  the  bill,  but  at  a  different  place  or  time,  or  in  a 
different  manner,  from  the  terms  thereof.  Thus,  where  a  bill  was 
drawn  with  a  date  expressed  when  it  was  payable,  and  the  drawee 

Carolina  v.  Bank  of  Cape  Fear,  13  Ired.  L.  75 ;  but  there  it  was  held  that  there  was  no 
differente  between  notes  by  a  natural  person  and  those  of  a  corporation,  in  this  re 
spect.  In  New  Hope  D.  B.  Co  v.  Perry,  11  111.  467,  in  an  action  on  a  bank-bill 
payable  at  a  particular  place  on  demand,  it  was  held  that  it  was  not  necessary  to  aver 
and  prove  a  demand  at  that  place.  In  Louisiana,  demand  at  the  time  and  place  was 
formerly  considered  necessary.  Mellon  v.  Croghan,  15  Mart.  La.  423  ;  Smith  v.  Rob- 
inson, 2  La.  405  ;  Erwin  v.  Adams,  id.  318;  Morton  v.  Pollard,  10  id.  552  ;  Warren 
V.  Allnutt,  12  id.  454;  Fort  v.  Cortes,  14  id.  180;  Hamer  v.  Johnson,  15  id.  242; 
Hart  V.  Long,  1  Rob.  La.  83  ;  Stillwell  v.  Bobb,  id.  311 ;  Wood  v.  Mullen,  3  id.  395  ; 
Funes  v.  U.  S-  Bank,  10  id.  533.  But  these  cases  have  been  overruled.  Ripka  v. 
Pope,  5  La.  Ann.  61 ;  McCallop  v.  Fluker,  12  La.  Ann.  551.  In  Picquet  v.  Curtis,  1 
Sumner,  478,  Stori/,  J.  said  :  "  The  decision  of  the  House  of  Lords  in  the  great  case 
of  Rowe  V.  Young  settled  the  law,  as  to  inland  bills,  upon  principles  which  strike  my 
mind  as  irresistible."  The  cases  in  Indiana  are  Palmer  i-.  Hughes,  1  Blackf.  328 ; 
Gilly  V.  Springer,  id.  257.  See  Aldcn  v.  Barbour,  3  Ind.  414.  In  Bassett  v.  Wills,  4 
Leigh,  114,  the  note  was  made  negotiable  at  a  certain  bank.  Held,  that  although 
negotiable  there,  it  was  not  therefore  payable  there,  and  that  an  averment  of  presenta- 
tion at  the  bank  need  not  be  proved. 

In  an  action  against  the  drawer  or  indorser,  it  is  necessary  to  aver  and  prove  de- 
mand at  the  place.  The  reason  is,  that  their  undertaking  is  conditional,  while  that  of 
the  maker  and  acceptor  is  primary.  U.  S.  Bank  v.  Smith,  11  Wheat.  171  ;  Berkshire 
Bank  v.  Jones,  6  Mass.  524  ;  Woodbridge  v.  Brigham,  12  id  403,  corrected  13  id.  556  ; 
Hart  y.  Green,  8  Vt  191,  194,  per  Phelps,  J.;  Allen  v.  Smith,  4  Ilarring.  Del.  234, 
per  Booth,  CJ.;  Shaw  v.  Reed,  12  Pick.  132;  North  Bank  v.  Abbot,  13  id.  465; 
Bank  of  Wilmington,  &c.  v.  Cooper,  1  Harring.  Del.  10;  Tuckerman  v.  Hartwell,  3 
Greenl.  147.  In  this  last  case,  Mel/en,  C.  J.  denies  that  there  is  any  difference  whether 
the  action  is  brought  against  a  drawer  or  indorser,  or  against  an  acceptor  or  maker. 
See  Irvine  v.  Withers,  1  Stew.  Ala.  234  ;  Roberts  v.  Mason,  1  Ala.  373 ;  Gla.«gow  i-. 
Pratte,  8  Misso.  336  ;  Sullivan  v.  Mitchell,  1  N.  Car.  L.  Rep.  482.  See  Smith  v. 
M'Lcan^  2  Taylor,  N.  Car.  72  ;  Nichols  v.  Pool,  2  Jones,  N.  Car.  23  ;  Watkins  v. 
Crouch,  5  Leigh,  522,  which  was  a  suit  against  the  maker  and  indorser  jointly,  and  it 
was  held  that  it  was  not  maintainable  without  averment  and  proof  of  demand  at  the 
place  specified.  Nor  does  the  acceptance,  by  the  indorser,  of  an  assignment  of  all  the 
ffFects  of  the  maker  as  security  for  part  of  the  note,  dispense  with  such  demand.     Ibid. 


r.J  2  NOTES   AXD    BILLS.  [CH.  IX. 

promised  ito  pay  it  on  a  subsequent  day,  the  acceptance  was  held 
to  be  good  within  the  custom  of  merchants. (^)  A  bill  drawn 
payable  November  28,  1836,  forty-two  months  after  date,  being 
accepted  on  condition  of  its  being  renewed  till  November  28, 
1844,  was  held  to  be  a  good  acceptance,  and  the  bill  to  be  prop- 
erly declared  on  as  accepted  payable  November  28,  1844. (f)  So 
a  draft  payable  at  sight  may  be  accepted  payable  at  a  subsequent 
day.(t/)  An  acceptance  for  part  of  the  bill  is  a  good  acceptance 
for  that  part.  Where  the  drawee  of  a  bill  for  X  127  accepted  to 
pay  £.  100,  part  thereof,  it  was  held  a  binding  acceptance. (<;)  And 
an  acceptance  to  pay  half  in  money  and  half  in  bills,  is  a  good 
acceptance  as  to  the  part  payable  in  money. (/)  We  have  alreadj- 
seen  that  an  acceptance  by  a  partner,  in  his  own  name,  of  a  bill 
drawn  on  a  firm,  binds  the  firm.(g')  The  same  lias  been  held 
with  reference  to  joint  traders,  if  it  concerns  the  trade  ;  but  it  is 
otherwise  if  it  concerns  the  acceptor  in  a  distinct  interest  and 
respect. (/i)  If  a  bill  drawn  on  a  partnersliip  is  not  accepted  un- 
til after  a  dissolution  piiblicly  announced,  it  binds  only  the  part- 
ner accepting  it,  if  the  other  partners  have  not  consented  to  his 
act.(i)  It  may  be  stated  as  the  result  of  the  cases,  that  an 
acceptance  by  one  of  a  bill  addressed  to  several,  renders  the 
acceptor  personally  liable. (7) 

(6)  Walker  f.  Atwood,  11  Mod.  190. 

(c)  Riissdl  V.  Phillips,  14  Q.  B.  891. 

[d)  Cliirkcr.  Goidon,3  Rich..311.  And  it  is  said  that,  if  the  drawee  of  a  hill  payable 
at  si<;ht  promises  to  pay  it  if  it  is  presented  at  a  particular  time,  the  plainiiti'  need  not 
aver  or  prove  presentment  at  that  time.  Ihid.  In  Price  v.  Shute,  Chitty  on  Bills,  303, 
a  bill  payable  Jan.  1st  was  accepted  payable  March  let.  The  holder  struck  out  this 
last  date  and  inserted  Jan.  1st.  The  acceptor  refused  to  pay  on  presentment  at  that 
time  The  holder  then  restored  the  date  to  March  1st,  and  recovered  a;j;aini^t  the 
accejttor.  'I'his  case  has  been  doubted  by  Lawrence,  J.,  Paton  v.  Winter,  1  Taunt. 
420,  and  in  Master  v.  Miller,  4  T.  R.  320. 

(*")  Wcf^MM-slofTe  V  Keene,  1  Stra.  214;  see  Douglass  r.  Wilkeson,  C  Wend.  637, 
642. 

(/)  Petit  I'.  Benson,  Comb.  452. 

(7)  Supra,  p.  123,  note  ^. 

(h)  Pinkney  v.  ILdl,  1  Salk.  126;  Dupays  ».  Shepherd,  Holt,  296. 

(/)  Toinbcckbee  Bank  v.  Dnniell,  .')  Mason,  .56. 

tj)  Made,  J.,  Owen  v.  Van  Uster,  10  C.  B.  318,  1  Eng.  L.  &  Eq.  396. 


CH.  LX.]  ACCEPTANCE    FOR   HONOR.  313 


SECTION    IV. 

ACCEPTANCE    FOR   HONOR. 

There  can  be  no  acceptance  except  by  a  drawee,  or  by  a 
drawee  au  besoin,  or  by  some  one  for  honor. (A:)  If  there  purport 
to  be  a  further  or  other  acceptance,  the  person  making  it  may  be 
held  as  a  guarantor  or  otherwise  on  his  contract,  (if  there  is  a 
consideration,)  but  not  as  acceptor. (/) 

If  the  original  drawee  refuses  to  accept  the  bill,  and  there  is 
no  drawee  au  besoin,  or  he  refuses  also,  and  the  bill  has  been 
duly  protested,  then  any  person  may  come  forward  and  accept 
the  bill  "  for  honor,"  and  this  may  be  done  at  the  request,  and 
under  the  guaranty,  of  the  drawee. (wi)  Such  acceptance  may 
also  be  made  if  the  original  drawee,  after  acceptance,  absconds 
or  becomes  insolvent. («)  This  last  acceptance,  "for  better  se- 
curity," as  it  is  called,  is  practised  in  England  much  more  fre- 
quently than  in  this  country. 

The  acceptor  for  honor  may  accept  for  any  one  or  more,  or  all 
the  parties  antecedent.  Properly  the  acceptance  sliould  desig- 
nate for  whose  honor  it  is  made,  and  then  it  enures  to  the  benefit 
of  that  party  and  of  all  parties  subsequent  to  him.(o)  If  it  is  gen- 
eral, it  will  be  taken  to  be  for  the  honor  of  the  drawer,  and  enures 
to  the  benefit  of  all  parties  subsequent.  The  holder  may  elect  to 
receive  or  reject  this  acceptance  at  liis  pleasure. (;-»)  If  he  receives 
it,  then  tlie  acceptor  is  bound  to  all  persons  to  whom  the  party 
for  whom  he  accepts  would  liave  been  bound.  In  some  instances 
the  acceptor  for  honor  writes  over  his  acceptance  "  provided  due 
demand  be  made,  and  the  drawer  "  (or  any  other  party  for  whom 
he  accepts)  "  is  duly  notified."  The  object  of  this  is  to  prevent 
the  acceptor  for  honor  from  being  liable,  iniless  the  party  for 

{k}  May  ».  Kelly,  27  Ala.  497  ;  Jackson  v.  Hudson,  2  Camp.  447 ;  Polhill  » 
Walter,  3  B.  &  Ad.  1 14  ;  Davis  v.  Clarke,  6  Q  B.  16.  Sec  Jenkins  v.  Hutchinson,  13 
Q.  B.  752.  The  drawee  may  recognize  an  acceptance  as  his.  See  Lindus  v.  Brad- 
well,  5  C.  B.  583. 

{/)  Jackson  v.  Hudson.  2  Camp.  447. 

(m)   Konig  v.  Bayard,  I  Pet.  250. 

(n)  Ex  parte  AVackei-bath,  5  Ves.  574. 

,o)  Hussey  v.  Jacob,  1  Ld.  Kaym.  88;  Lewin  r.  Brunetti,  1  Lutw.  896,  Carth.  199. 

(/>)  Mitford  V.  Walcot,  12  Mod.  410;  Gregory  i;.  Walcup,  1  Coniyns,  75. 

VOL.  I.  27 


814  NOTES  AXD  BILLS.  [CH.  IX 

whose  honor  the  acceptance  is  made  is  himself  liable.  We  think, 
however,  that  the  law  merchant  would  itself  make  this  provision, 
unless  there  was  an  express  or  implied  waiver  by  the  acceptor 
for  honor. (7) 

The  holder  cannot  look  to  the  prior  parties  of  a  foreign  bill, 
unless  he  protested  the  bill  for  the  non-acceptance  of  the  drawee, 
and  gave  them  due  notice. (r)  And  this  should  regularly  be 
done,  even  where  there  has  been  a  proper  acceptance,  and,  the 
drawee  having  failed  or  absconded,  a  subsequent  acceptance  for 
honor  is  made. 

For  the  reason  that  an  acceptance  for  honor  cannot  properly 
be  made  until  the  bill  has  been  protested  for  non-acceptance  ;  or, 
if  the  acceptor  have  failed  or  absconded,  for  better  security  ;  such 
acceptance  is  usually  designated  in  England  and  in  this  country 
as  an  acceptance  supra  protest;  this  being  required  by  the  law 
merchant  as  the  only  appropriate  proof  of  that  failure  or  refusaJ 
to  accept  of  the  proper  person,  which  alone  gives  to  a  third  party 
the  right  to  come  in  and  accept  "for  honor."(s)  A  holder,  aa 
we  have  said,  may  entirely  refuse  an  acceptance  for  honor  ;  in 
which  case  he  has,  of  course,  no  claim  whatever  against  one  who 
proposes  to  be  an  acceptor  for  honor,  or  becomes  so  without  the 
assent  of  the  holder.  If  lie  receives  this  acceptance,  he  can 
demand  payment  of  the  bill  from  the  acceptor  for  honor  only  at 
its  maturity. (<)  So,  also,  all  of  those  for  whose  honor  the  bill  is 
accepted  are  protected  by  it,  if  such  acceptance  is  received,  in 
the  same  manner  in  which  they  would  have  been  by  a  regular 
acceptance  by  the  drawee.  If  the  acceptance  be  without  limita- 
tion, we  liave  seen  that  it  is  construed  as  an  acceptance  for  the 
honor  of  the  drawer,  but  it  may  be  for  the  honor  "  of  the  bill," 
or  "  of  all  the  parties,"  and  then  it  must  be  so  expressed  ;  (m) 
but  if  it  be  a  special  acceptance  for  the  honor  of  one  or  more  of 
the  prior  parties  who  are  particularly  designated,  it  is  not  for 

(7)  Baring  v.  Clark,  19  Pick.  220. 

(r)  Phfcnix  Rank  v.  Ilussey,  12  Pick.  483. 

(s)  Plifcnix  Bank  v.  Hussey,  12  Pick.  483. 

(0  Williams  V.  Gcrmainc,  7  B.  &  C.  4G8,  1  Man.  &.  R.  394,  403.  Lord  Teuterden 
gaid  :  An  acceptance  for  honor  "is  equivalent  to  gaying  to  the  holder  of  the  Vill, 
'Keep  tliis  hill,  don't  return  it,  and  when  the  time  arrives  at  which  it  ought  to  be  paid, 
if  it  is  not  paid  by  the  party  on  whom  it  was  originally  drawn,  come  to  me  and  you 
shall  liavc  the  money.'  " 

(u)  See  Gazzam  v.  Armstrong,  3  Dana,  5.')4. 


CH.  IX.]  ACCEPTANCE   FOR  HONOR.  315 

the  honor  of  those  prior  to  the  party  for  whom  it  is  accepted,  and 
they  are  excluded  from  its  benefit  and  protection. (y)  And  It 
seems  that  the  holder,  if  he  has  duly  notified  these  unprotected 
parties  of  the  non-acceptance,  may  immediately  resort  to  them 
for  payment,  in  the  same  manner  as  if  there  were  no  acceptance 
at  Si\\.{iv) 

The  drawee  may  himself  refuse  to  accept  the  bill  generally, 
and  may  then  accept  it  supra  protest  for  some  one  or  more 
of  the  parties  ;  as,  for  instance,  he  may  refuse  to  accept  it 
for  the  drawer,  and  may  then  accept  it  for  the  honor  of  an  in- 
dorser.(.?:)  But  if  it  was  his  duty  to  accept  it  generally,  by 
reason  of  the  state  of  his  accounts  with  the  parties,  he  gains 
nothing  by  refusal  and  subsequent  acceptance  supra  protest ;  nor 
would  he  in  any  case,  if  this  subsequent  acceptance  supra  protest 
were  general,  or  for  all  parties  to  the  bill.(7/)  There  may  be  suc- 
cessive acceptors  for  honor,  for  the  reason  that  there  may  bo 
many  persons  for  whom  acceptance  supra  protest  may  be  made. 
There  can  be  but  one  such  acceptance  for  one  person,  if  that  bo 
received  by  the  holder ;  but  there  may  be  a  separate  acceptanco 
by  as  many  persons,  for  the  honor  of  each  party  to  the  bill,  aa 
there  are  such  parties. (2^)  It  has  been  held  that  an  acceptor 
supra  protest  for  the  honor  of  the  first  indorser,  may  require  of 
the  holder  as  a  condition  of  payment  that  the  bill  shall  be  in- 
dorsed to  him. (a) 

The  acceptor  supra  protest  is  bound  to  all  persons  to  whom  the 
acceptor  would  have  been  bound,  as  has  been  said,  but  he  is  not 
bound  to  them  in  the  same  way,  or  on  the  same  conditions.  A 
drawee  becomes  by  acceptance  an  absolute  promisor,  like  the 
maker  of  a  note  ;  and  the  drawer  is  as  his  indorser.  But  an 
acceptor  for  honor  is  liable  rather  as  an  indorser  ;   for  he  is 


(»)  Beawes,  p.  459. 

(w)  Beawes,  p.  459. 

(.r)  Beawes,  pi.  33. 

(y)  Schimmelpeunich  v.  Bayard,  1  Pet.  264.  Marshall,  C.  J.  said  :  "  If  the  drawees, 
refusing  to  honor  the  bill,  and  thus  denying  the  authority  of  tlie  drawer  to  draw  upon 
them,  were  bound,  in  good  faith,  to  accept  or  pay  as  drawees,  they  will  not  be  per- 
mitted to  change  the  relation  in  which  they  stand  to  the  parties  on  the  bills  by  a  wrong- 
ful act.  They  can  acquire  no  rights,  as  the  holders  of  bills  paid  supra  protest,  if  they 
were  bound  to  honor  them  in  their  character  of  drawees." 

(2)  Beawes,  pi  42. 

(a)  Freeman  v.  Perot,  2  Wash.  C.  C.  485, 


316  NOTES   AND    DILLS.  [CH.  IX. 

bound  to  pay  only  on  condition  that  the  bill  shall  be  again  pre- 
sented for  payment  at  maturity  to  the  drawee  (who  may  in  the 
mean  time  be  furnished  with  funds),  and,  if  not  then  paid,  be 
regularly  protested  for  non-payment,  and  notice  given  to  him.  (6) 
Where  a  bill  drawn  on  a  merchant  in  Liverpool,  payable  in 
London,  was  presented  to  the  drawee,  who  refused  to  accept ; 
and  was  subsequently  accepted  in  London  for  the  honor  of  the 
payee,  "  if  regularly  protested  and  refused  when  due,"  it  was 
held  that  a  presentment  for  payment  to  the  drawee  in  Liverpool^ 
a  refusal  by  him,  and  a  protest  there,  were  necessary  in  order  to 
charge  the  acceptor  for  honor. (c)  Evidence  was  introduced  in 
this  case  to  show  that  the  usage  under  such  circumstances  was 
to  have  the  protest  for  non-payment  made  in  London  ;  but  the 


(6)  Hoare  v.  Cazenove,  16  East,  391.  Lord  Ellenborout/h  said  :  "  The  question,  there- 
fore, is,  wliether  a  presentment  to  the  drawees  for  payment,  and  a  protest  for  non-pay- 
ment by  them,  is  or  is  not  essential  as  a  previous  requisite  to  the  maintaining-  of  an 
action  against  these  defendants,  the  acceptors  for  tlie  lionor  of  tiie  first  indorsers  ;  and 
this  depends  upon  the  nature  and  obligation  of  an  acceptance  for  tiie  honor  of  the 
drawer  or  indorser.  If  an  acceptance  in  these  terms  be  an  engagement  by  the  person 
giving  it  that  he  will  pay  the  bill  when  it  becomes  due,  and  entitles  the  holder  to  look 
to  him  in  the  first  instance,  without  a  previous  resort  to  any  person,  the  plaintiffs  are  in 
that  case  entitled  to  recover  upon  their  second  count ;  but  if  such  an  acceptance  be  in  its 
nature  qualified,  and  amount  to  a  collateral  engagement  only,  i  e.  an  undertaking  to  pay 
if  the  original  drawee,  upon  a  presentment  to  him  for  payment,  should  persist  in  dis- 
honoring this  bill,  and  such  dishonor  by  him  should  be  notified,  by  protest,  to  the  person 
who  has  accepted  for  tlie  honor  of  the  indorser,  —  then  the  necessary  steps  have  not 
been  taken  upon  this  bill,  and  the  plaintiffs  cannot  recover.  And  sucli,  after  much  con- 
sideration, we  are  of  opinion,  is  the  case The  use  and  convenience,  and  indeed  the 

necessity,  of  a  protest  upon  foreign  bills  of  exchange,  in  order  to  prove,  in  many 
cases,  the  regularity  of  the  pi-oceedings  thereupon,  is  too  obvious  to  wai'rant  us  in  dis- 
pensing with  such  an  instrument  in  any  case  where  the  custom  of  merchants,  as  re- 
ported in  the  authorities  of  law.  appears  to  have  required  it.  And  indeed  the  reason 
of  the  thing,  as  well  as  the  strict  law  of  the  case,  seems  to  render  a  second  resort  to  the 
drawee  proper  when  the  unaccepted  bill  still  remains  with  the  holder  ;  for  effects  often 
reach  tlie  drawee  who  has  refused  acceptance  in  the  first  instaiK'C,  out  of  which  the  bill 
may,  and  would  be,  satisfied,  if  ])resented  to  him  again  when  the  period  of  payment 
had  arrived.  And  the  drawer  is  entitled  to  the  chance  of  benefit  to  arise  from  such 
second  demand,  or  at  any  rate,  to  the  benefit  of  that  evidence  which  the  protest  nfibrds, 
that  the  demand  has  been  made  duly,  without  effect,  as  far  as  sucli  evidence  maj'  bo 
available  to  him  for  purposes  of  ulterior  resort."  In  Williams  v.  Germainc,  7  li.  &  C. 
408,  the  doctrine  of  Hoarc  »;.  Cazenove  was  affirnied,  and  judgment  arrested  because 
the  declaration  did  not  aver  presentment  to  the  drawee  for  payment.  Mitchell  i;  Bar- 
in).5,  10  B.  &  C  4  ;  Roach  v.  Ostler,  1  Man.  &  11.  120;  Leno.v  v  Leverelt,  10  Muss. 
1  ;  Sehofield  v   Bayard,  3  Wend.  488. 

(r)  Miieriell  r.  Baring,  10  B  &  C.  4,  4  Car.  &  V.  35,  Moody  &  M.  381.  Sec  Scho- 
fifld  V.  Bayard,  3  Wend.  488. 


r 


CH.  IX.]  ACCEriANCE   FOR   HONOR.  317 

court  held  that  the  peculiar  form  of  the  acceptance  rendered  an 
inquiry  into  this  custom  irrelevant  and  unnecessary.  In  conse- 
quence of  this  doubt  thrown  on  the  validity  of  the  usage,  the 
statute  2  &  3  Wm.  IV.  c.  98  was  passed,  which,  after  reciting 
that  doubts  had  arisen  on  this  point,  and  the  expediency  of 
removing  them,  enacted  that  bills  so  accepted  may  be  protested 
for  non-payment  in  the  places  in  which  the  drawers  made  them 
payable,  without  further  presentment  to  the  drawees,  unless  the 
amount  owing  upon  such  bills  of  exchange  shall  have  been  paid 
to  the  holders  on  the  day  on  whicli  the  bills  would  have  become 
payable  had  they  been  duly  accepted. 

If  an  acceptor  for  lionor  pay  the  bill,  or  if  any  one  pays  for 
honor  supra  protest,  although  he  did  not  accept,  he  may  resort 
for  full  indemnity  for  his  payment  and  all  legal  costs  to  the 
person  or  persons  for  whose  honor  he  made  the  acceptance  or 
the  payment,  and  to  all  parties  who  would  have  been  liable  to 
those  persons  had  they  paid  the  bill  themselves.  ((/)  And  he  may 
declare  generally  upon  this  custom, (e)  or  perhaps  generally  upon 
a  count  for  money  paid  to  the  defendant's  use.(/)  In  an  action 
upon  a  bill  with  several  indorsements,  by  one  who  has  paid  the 
bill  for  the  honor  of  one  of  the  indorsers,  it  is  sufficient,  even 
upon  special  demurrer,  to  state  that  he  paid  the  bill  according  to 
the  custom  of  merchants,  without  stating  that  he  paid  it  to  the 
last  indorsee. (g-)  Nor  can  such  payment  for  a  party  discharged 
by  laches  revive  his  lost  liability.  (A)     If  it  had  been  accepted  by 

{d)  Leake  v.  Burgess,  13  La.  Ann.  156  ;  Gazzam  v  Armstrong,  3  Dana,  .554,  where 
Marshall,  J.  said :  "  We  are  decidedly  of  opinion,  that  he  (the  acceptor  for  honor)  ac- 
quired no  demand,  or  rigiit  of  action,  against  any  party  subsequent  to  the  one  for  whom 
he  made  the  payment,  and  that,  even  as  against  the  preceding  parties,  he  was  only 
substituted  to  the  rights  of  that  party,  in  the  same  condition  as  if  he  had  paid  the  bill 
himself."  In  Mertens  v.  Winnington,  1  Esp.  113,  "  Lord  Kenyan  was  of  opinion  that 
when  a  bill  is  so  taken  up  (for  honor),  that  tlie  party  who  does  so  is  to  be  considered  as 
au  indorsee  paying  full  value  for  the  bill,  and  as  such  entitled  to  all  the  remedies  to  which 
an  indorsee  would  be  entitled,  that  is,  to  sue  all  the  parties  to  the  bill."  This  seems 
rather  too  broad  a  proposition.  "  He  has  the  right  and  remedies  of  the  indorser  for 
whom  he  pays  the  bill,  if  he  chooses  to  put  himself  in  that  position."  Erie,  J.,  Goodall 
V.  Polhill,  1  C.  B.  233,  239.  It  is  necessary  for  the  acceptor  for  iionor,  on  payment 
of  the  bill,  to  give  notice  of  the  payment  to  the  party  for  whom  he  accepted ;  otherwise 
he  loses  all  claim  upon  him.     Wood  v.  Pugh,  7  Ohio,  156. 

(e)  Fairley  v.  Roch,  1  Lutw.  891. 

(/)  See  Smith  v  Nlssen,  1  T.  R.  269 ;  Vandewall  v.  Tyrrell,  Moody  &  M.  87. 

Ig)  Cox  V.  Earle,  3  B.  &  Aid.  430. 

(A)  See  Higgius  v.  Morrison,  4  Dana,  100. 
97  « 


818  NOTES  AND   BILLS.  [CH.  IX. 

the  drawee,  and  the  acceptance  for  honor  had  been  for  better  se- 
curity, the  acceptance  gives  a  claim  against  the  acceptor  also.(t) 

If  both  drawer  and  acceptor  had  become  bankrupt,  and  the 
acceptance  were  for  the  drawer's  accommodation,  it  has  been 
held  that  the  acceptor  for  honor  must  first  resort  to  the  estate  of 
the  drawer. (y)  It  was,  however,  held  in  a  subsequent  case,  that 
the  payer  for  the  honor  of  the  drawer,  under  similar  circum- 
stancesj  has  no  claim  on  the  assignees  of  the  acceptor,  because 
the  drawer  himself  had  none. (A;) 

An  acceptor  for  honor  of  the  drawer  thereby  releases  the 
accommodation  acceptor  of  the  bill,  because  an  acceptor  for 
honor  can  acquire  only  the  rights  of  the  party  whom  he  thus 
protects,  and  a  drawer  has  no  claim  upon  an  accommodation 
acceptor. (/)  If  a  drawee  who  is  not  bound  to  accept  a  bill 
refuses  acceptance,  and  requests  a  third  person  to  accept  it  for 
honor  of  an  indorser,  and  guarantees  that  third  person  for  so 
doing  ;  if  such  acceptor  for  honor  pay  the  bill,  he  may  still 
resort  to  the  indorser.  But  the  indorser  may  put  in  any  defence 
he  would  have  had  against  the  drawee. (?m)  If  an  acceptor  for 
honor  of  an  indorser  specially  promises  to  pay  any  person  au- 
thorized to  receive  the  money  and  give  a  valid  discharge,  it 
seems  that  he  is  not  bound  to  pay  unless  the  holder  will  put  his 
name  on  the  bill,  or  give  him  a  bond  of  indemnity. (w) 

If  the  bill  be  payable  at  so  many  days  after  sight,  and  accepted 
for  honor,  the  time  which  the  bill  has  to  run  is  computed,  not 
from  presentment  to  the  drawee,  but  from  the  acceptance  svpra 
protest. (o) 

An  acceptor  supra  protest  should  go  before  the  notary  public 
with  witnesses,  and  declare  that  he  accepts  the  bill  for  honor,  and 
designate  for  whose  honor  he  so  accepts.  This  is  at  least  the 
usual  way,  and  no  very  wide  departure  from  it  would  probably 
be  allowed. (/>)     But  although,  when  he  writes  his  acceptance  on 

(i)  Ex  parte  Wnckerhatl),  .5  Vcs.  574. 
(j)  Ex  parte  Watkcrbath,  5  Vcs.  574. 
(k)  Ex  parte  Latnhcrt,  13  Ves.  179. 

(/)  McDowoil  r.  Cook,  6  Sinetlcs  &  M.  420;  Gazzam  v.  Armstrong,  3  Dana,  554 
Ex  parte  Lambert,  13  Ves.  179. 
(m)  Konijr  v.  Bayard,  1  Pet.  250. 
(n)  Freeman  v.  Perot,  2  Wash.  C.  C.  485. 

(o)  Williams  v.  Gcrmaine,  7  B.  &  C.  4G8,  1  Man.  &  R.  394,  403. 
{p)  Gazzam  v.  Armstrong,  3  Dana,  554. 


CH.  IX.]  ACCEPTANCE   FOR   HONOR.  319 

the  face  (as  lie  should),  and  signs  it,  it  is  proper  to  say,  "Ac 
cepted  supra  protest,"  or  "  for  honor,"  it  seems  to  be  sufficient, 
and  may  now  bo  even  more  usual,  to  say  only,  "  Accepted  S,  P." 

After  protest  for  non-acceptance,  whether  there  bo  acceptance 
supra  protest  or  not,  there  should  be  a  regular  demand  and  pro- 
test for  non-payment,  and  due  notice  given,  not  only  to  enable 
the  holder  to  sue  all  parties,  but  to  enable  the  acceptor  for  honor 
to  sue  the  party  for  whom  he  accepts. (</) 

The  whole  law  on  the  subject  of  the  acceptance  of  bills  supra 
protest  is  quite  peculiar,  and  is  a  decided  exception  to  the  rule 
that  no  man  can  make  himself  the  creditor  of  another  without 
his  authority  or  consent.  For  here,  any  stranger,  as  we  have 
seen,  may  become  bound  for  another,  and,  by  satisfying  the  obli- 
gation, acquire  a  positive  claim  against  him  for  indemnity,  with- 
out either  authority  or  consent  from  him.  But  the  rule  is  derived 
from  the  law  merchant,  and  rests  altogether  upon  the  purpose 
and  functions  of  bills  of  exchange.  It  is  not  yet  extended, 
either  in  law  or  by  usage,  to  the  case  of  promissory  notes ;  where- 
fore, one  who  pays  a  note  which  is  overdue,  without  authority  or 
request  from  him  who  owes  it,  acquires  thereby  no  right  against 
him. 

It  is  said  by  Chitty,  that  a  presentment  should  be  made  to  the 
acceptor  for  honor  after  the  prior  requisites  have  been  performed, 
and  if  this  is  not  done,  he  may  be  discharged  from  liability. (r) 
But  we  know  no  authority  for  this.  Before  paying,  the  acceptor 
should  ascertain  whether  the  signature  of  the  party  for  whose 
honor  he  is  about  to  pay  is  genuine  or  not.  If  it  is  forged,  he 
can  have  no  recourse  to  the  party  himself,  and  unless  the  forgery 
be  promptly  discovered,  and  immediate  notice  given  to  the  holder 
to  whom  payment  had  been  made,  all  claim  on  the  latter  would 
be  extinguished. (5)  And  it  has  been  held  that  the  mistake  must 
be  discovered,  and  notice  given,  on  the  very  day  of  payment,  in  or- 
der to  hold  the  prior  parties  ;  (t)  the  reason  being,  that  the  holder 
is  entitled  to  know  on  the  day  the  bill  falls  due  whether  it  is  hon- 
ored or  dishonored.  If  the  acceptor  for  honor  pays  the  bill,  he 
Bhould  declare  before  a  notary  that  he  pays  supra  protest,  speci- 

{q)  Schofield  v.  Bayard,  3  Wend.  491. 

(r)  Chitty  on  Bills,  351. 

\s)  Wilkinson  v.  Johnson,  3  B.  &  C.  428,  5  Dow.  &  R.  403. 

(t)  AVilUnson  v.  Johnson,  3  B.  &  C.  428;  Cocks  v.  Mastcrman,  9  B.  &  C.  902. 


320  NOTES   AND    BILLS.  [CH.  IX. 

fying  tlie  party  for  whom  he  pays  ;  and  this  declaration  should 
be  recorded  by  the  notary,  either  in  the  protest  itself  or  in  a  sep- 
arate instrument. (z<)  Notice  sliould  also  be  given  of  this  pay- 
ment to  the  party  for  whose  honor  payment  is  made,  otlierwise 
the  payer  for  honor  will  lose  his  right  to  call  upon  him  to  re- 
fund.(tj)  If  the  acceptor  for  honor  should  himself  refuse  to  pay, 
there  should  be  still  another  protest,  and  notice  given  to  the 
drawer  and  indorsers.(M?)  It  seems  that  the  formal  instrument 
of  protest  may  be  drawn  up  at  any  time,  even  after  the  com- 
mencement of  an  action  by  the  party  paying  against  the  party  for 
whose  honor  the  payment  was  made,  (a;) 


SECTION    Y. 

WHAT    ACCEPTANCE    ADMITS. 

Every  acceptance  admits  tlie  signature  of  the  drawer,  and  the 
acceptor  is  liable  to  an  innocent  holder  for  value,  although  the 
signature  be  forged. (y)     If  the  acceptor,  in  an  action  against  him 


4  Man.  &  R.  676.  Tliis  last  case  is  cited  by  Coicen,  J.,  Canal  Bank  v.  Bank  of  Al- 
bany, 1  Hill,  287,  292,  and  disapproved,  as  requiring  "  an  almost  impracticable  dili- 
gence. I  doubt  whether  this  case  can  be  sustaiued,  except  upon  its  own  peculiar 
circumstances,  if  it  can  be  sustained  at  all." 

(u)  Bcawes,  pi.  ^3.  In  Gcralopulo  v.  Wieler,  10  C.  B.  690,  709,  M,nih;  J.  said  :  "  It 
is  a  part  of  the  mercantile  law  respecting  payments  for  honor,  that  tlicy  must  he  pre- 
ceded or  accompanied  by  a  declaration,  made  in  the  presence  of  a  notary,  for  whose 
iionor  he  pays  the  bill,  which  should  be  recorded  by  a  notary,  eitiicr  on  the  ])rotest  or 
in  a  separate  instrument.  It  would  indeed  be  contrary  to  a  general  jjrincijile  of  law  and 
justice,  if  a  person  who  made  a  payment,  or  did  an  act  simply  without  limit  or  qualifi- 
cation, could  afterwards,  by  a  subsecjucnt  declaration  limiting  or  qualifying  its  effect, 
affect  the  riglit  of  others.  No  person,  therefore,  paying  money  sim])]y  to  the  holder  of 
a  bill,  could,  by  the  general  rules  of  law,  by  a  subsequent  declaration,  cause  a  pay- 
ment so  made  to  assume  the  character  of  a  payment  for  honor.  The  custom  of  mer- 
chants requires  the  declaration  which  is  to  qualify  the  payment  to  be  made  in  the  pres- 
ence of  a  notary."     Sec  also  Gazzam  v.  Armstrong,  3  Dana,  5.54. 

(r)  Wood  V.  Pugh,  7  Ohio,  1.56. 

{w)  Chitty  on  Bills,  p.  ."352. 

(x)  So  held  in  Gcralopulo  v.  Wieler,  10  C.  B.  690.  This  case  explains  A^andewall 
r.  Tyrrell,  Moody  &  M.  87,  where  a  somewhat  different  rule  was  apjiarcntly  laid  down. 

(y)  In  Wilkinson  v.  Lutwidgc,  1  Stra  648,  an  action  on  the  case  against  an  acceptor, 
it  was  objected  that  the  acceptance  could  not  be  proved  till  after  proof  of  the  signa- 
tarc  of  the  drawer.  "  But  as  to  this,  the  Chief  Justice  (Lord  I\aijwotif{)  was  of  opinion 
that  proof  of  an  acceptance  was  a  sufficient  acknowledgment  on  the  part  of  the  ac- 
ceptor, who  mu.st  be  supposed  to  know  the  hand  of  his  own  correspondent,  but  he  said 


CII.  IX.]  WHAT   ACCEPTANCE   ADMITS.  321 

by  an  iudovscr,  denies  by  his  plea  the  handwriting  of  the  drawer, 
the  pkiintiff  may  reply  the  acceptance  by  way  of  estoppel. (2^) 
Tlie  acceptance  also  admits  the  capacity  at  that  time  of  the  per- 
son, to  whom  the  bill  is  payable,  to  indorse,  and  the  acceptor 
cannot  afterwards  say  that  this  person  was  a  bankrupt, (a)  or  an 
infant, (6)  or  a  married  woman ;  (c)  although  in  the  latter  case, 
if  she  indorsed  it  over,  and  afterwards  her  husband  exercised  his 
right  and  indorsed  it  also,  the  acceptor  might  be  obliged  to  pay 
it  twice. ((/)  Nor  can  the  acceptor  say  that  the  bill  was  drawn 
upon  a  corporation  which  had  no  power  to  indorse. (e) 

But  if  the  bill  be  actually  indorsed  at  the  time  of  acceptance, 
this  does  not  admit  the  genuineness  of  the  indorsement, (/)  un- 
less the  name  be  that  of  a  living  person  which  is  forged,  and  the 
drawee  knew  this,  and  intended  to  give  currency  to  the  bill  so 
indorsed. (o™)     We  should  extend  this  principle  so  far  as  to  say 

it  would  not  he  conclusive  evidence."  In  Jenys  v.  Fawler,  2  id.  946,  Lord  Raymond 
"strongly  inclined  that  even  actual  proof  of  forgery  would  not  excuse  the  defendants 
against  their  own  acceptance,  which  had  given  the  bill  a  credit  to  the  indorsee."  In 
Price  V.  Neal,  3  Burr.  1354,  the  acce])tor,  having  paid  a  bill  with  the  signature  of  the 
drawer  forged,  was  not  allowed  to  recover  back  the  amount  from  the  indorsee  to  whom 
he  paid  it,  on  the  ground  that  his  acceptance  was  an  admission  of  the  signature.  "  When 
a  bill  is  presented  for  acceptance,  the  acceptor  only  looks  to  the  handwriting  of  the 
drawer,  which  he  is  afterwards  precluded  from  disputing,  and  it  is  on  that  account  that 
an  acceptor  is  liable,  even  though  the  bill  be  forged."  Per  Bailer,  J.,  Smith  v.  Ches- 
ter, 1  T.  R.  6.54  ;  Master  v.  Miller,  4  T.  R.  320;  Dampier,  J,  Bass  v.  Clive,  4  Mauls 
&  S.  15  ;  Porthouse  v.  Parker,  1  Camp.  82 ;  Levy  v.  Bank  of  U.  S.,  1  Binn.  27,  4  Dal- 
las, 234 ;  Peoria,  &c.  R.  Co.  v.  Neill,  16  111.  269  ;  Whitney  v.  Bunnell,  8  La.  Ann.  429. 
See  Ellis  v.  Ohio  Life,  &c.  Co ,  4  Ohio  State,  628  ;  Canal  Bank  v.  Bank  of  Albany, 
1  Hill,  287  ;   Talbot  v.  Bank  of  Rochester,  id.  295. 

(2)  Sanderson  v.  Coleman,  4  Man.  &  G.  209.  So  an  indorsement  by  the  payee  ad- 
mits the  signature  of  the  maker.     Free  v.  Hawkins,  Holt,  550. 

(a)  Braithwaite  v.  Gardiner,  8  Q.  B.  473.  See  Pitt  v.  Chappelow,  8  M.  &  AV.  616; 
Drayton  v.  Dale,  2  B.  &  C.  293,  3  Dow.  &  R.  534. 

(ft)  Taylor  v.  Croker,  4  Esp.  187  ;  Jones  ;-.  Darch,  4  Price,  300.     See  supra,  p.  70. 

(c)  Prince  v.  Brunatte,  1  Scott,  342,  3  Dowl.  Prac.  Cas.  382. 

(d)  Smith  V.  Marsack,  6  C.  B.  486. 

(e)  Hallifax  v.  Lyle,  3  Exch.  446. 

(/)  Smith  V.  Chester,  1  T.  R.  654 ;  Carvick  v.  Vickery,  2  Doug.  653,  note  ;  Robarta 
r.  Tucker,  16  Q.  B.  560. 

[g]  Beeman  v.  Duck,  11  M.  &  W.  251.  In  this  case  Parke,  B.  remarked,  with  refer- 
ence to  the  case  where  the  drawer  and  first  indorscr  is  the  same  party,  that  "it  is  in- 
sisted that  in  such  a  case  the  acceptor,  though  he  admits  that  the  bill  was  drawn  by  the 
parties  by  whom  it  purports  to  be  drawn,  does  not  admit  the  indorsement  by  the 
same  parties ,  a  doctrine  which  is  clearly  established  as  to  bills  wherein  the  signature 
is  not  forged."  Robinson  v.  Yarrow,  7  Taunt.  455,  is  cited  as  the  authority  for  tliis, 
and  an  opinion  is  intimated  that  the  rule  is  the  same  where  the  drawer's  name  was  forged. 

Vol.  I.— V 


322  NOTES   AND   BILLS.  [CH.  K. 

that,  whatever  objection  might  exist  against  a  bill,  if  the  drawee 
accepted  the  bill  with  a  knowledge  of  it,  the  presumption  wonld 
be  that  he  intended  to  give  currency  to  that  bill,  although  then 
objectionable,  and  that  he  could  not  afterwards  avail  himself  of 
such  objection.  But  acceptance,  together  with  payment  by  the 
acceptor,  do  not  admit  the  genuineness  of  an  indorsement  by  the 
payee ;  and  the  acceptor  may,  on  discovering  that  the  payee's 
signature  was  forged,  recover  the  amount  from  tlie  party  to  whom 
the  payment  was  made.(/t)  If,  however,  it  appears  that  the 
payee  was  never  the  owner  of  the  bill,  nor  had  any  interest  in  it, 
and  the  drawer  put  it  in  circulation  with  the  forged  signature 
upon  it,  the  acceptor  cannot  now  recover  back  the  money  he  has 
paid  from  the  party  to  whom  he  paid  it,  but  may  charge  it  to  the 
drawer,  who  will  be  estopped  from  denying  the  genuineness  of 
the  indorsement,  (i)  If  a  bill  be  drawn  by  one  as  the  agent  of 
another,  acceptance  admits  his  authority  to  draw  the  bill,  but  not 
his  authority  to  indorse  it.(j)  If  it  be  drawn  in  a  fictitious 
name,  the  acceptor  not  only  admits  this  to  be  good,  but  is  said  to 
be  bound  by  any  indorsement  of  the  same  name  by  the  same 
hand.  (A:) 

If  the  drawee  of  a  bill  which  purports  to  have  been  ac- 
cepted, once  admits  that  the  acceptance  is  his,  and  so  gives 
currency  to  the  bill,  this  is  in  the  nature  of  a  conclusive  adop- 

Robinson  v.  Yarrow  decides  that  acceptance  admits  the  authority  of  an  agent  to  draw, 
but  not  his  authority  to  indorse,  though  botli  signatures  arc  in  the  same  handwriting. 
Park,  J.  said,  that  "  mere  acceptance  proves  tlie  drawing,  but  it  never  proves  tlie  in- 
dorsement." Smith  V.  Chester,  1  T.  R.  6.54,  decides  that,  in  an  action  by  an  indorsee 
against  an  acceptor,  it  is  necessary  to  prove  tlie  handwriting  of  the  first  indorser,  but 
it  docs  not  appear  that  the  drawer  and  first  indorser  was  the  same  party.  There  might 
be  a  distinction  between  Robinson  v.  Yarrow  and  the  point  under  consideration,  on 
the  ground  tliat  an  authority  to  draw  and  an  authority  to  indorse  are  dificrent  things. 
The  reason  for  holding  that  acceptance  admits  the  drawer's  signature,  because  the 
acceptor  is  bound  to  know  the  writing  of  the  drawer,  might  extend  also  to  an  indorse- 
ment by  the  same  party;  and  so  also  the  reason  that  the  acceptor  Is  bound  to  look  at 
the  drawer's  sign.ature,  for  if  the  bill  is  drawn  payable  to  the  order  of  the  drawer,  the 
drawee  should  look  further,  and  see  if  the  drawer  has  not  ordered  it ;  for  if  ho  has  not, 
the  bill  is  Incomplete. 

(h)  Canal  Bank  v.  Bank  of  Albany,  1  Hill,  287  ;  Talbot  v.  Bank  of  Rochester,  id. 
29.5;  Dick  v.  Lcvcrick,  H  La.  .573  ;  Horfsman  v.  Ilenshaw,  11  How.  177. 

(0  Coggill  V.  American  Bank,  1  Comst.  113  ;  Hortsman  v.  Henshaw,  11  How.  177  : 
Meacher  v.  Fort,  3  Hill,  S.  Car.  227. 

(j)  Robinson  v.  Yarrow,  7  Taimt.  455,  1  J.  B.  Moore,  150.  So,  though  the  indorse- 
ment was  made  before  acceptance.     Park,  J.,  id. 

(k)  Cooper  r.  Meyer,  10  B.  &  C.  468 ;  Bceman  v.  Duck,  11  M.  &  W.  251 


CI  I.  IX.]  WHAT   ACCEPTANCE  ADMITS.  323 

tioii ;  and  lie  cannot  afterwards  defend  himself  by  showing  it 
to  be  a  forgery,  even  if  he  made  the  admission  beheving  the  ac- 
ceptance to  be  his  own.(^)  If  an  acceptor  who  is  bound  by  his  ad- 
mission pay  a  forged  bill,  this  gives  iiim  no  claim  against  an  inno- 
cent drawer,  whose  name  was  used.(m)  If  the  acceptor  of  a  bill 
puts  it  into  circulation,  he  thereby  admits  it  to  be  a  valid  sub- 
sisting bill,  and  cannot  afterwards  allege  that  he  paid  it  before 
maturity,  (w) 

A  bill  of  exchange  is  presumed  to  be  drawn  on  funds,  with 
the  understanding  between  drawer  and  drawee  that  it  is  an 
appropriation  of  the  funds  of  the  former  in  the  hands  of  the  lat- 
ter, and  acceptance  is  an  admission  that  it  was  so  drawn,  and  of 
such  a  relation  between  the  parties. (o)  An  acceptance  for  honor 
does  not,  however,  admit  the  genuineness  of  the  signature  of  the 
party  for  whose  honor  the  acceptance  is  made. (7?)  And  if  the 
bill  is  so  paid,  the  person  paying  may,  if  due  diligence  be  used, 
recover  back  the  amount  from  the  holder  who  received  it.(^) 


(/)  Leach  v.  Buchanan,  4  Esp.  226. 

(m)  Hortsraan  v.  Henshaw,  II  How.  177. 

(w)  Hinton  v.  Bank  of  Columbus,  9  Port.  Ala.  463. 

(0)  Jordan  v.  Tarkington,  4  Dev.  357  ;  Raborg  r.  Peyton,  2  Wheat.  385  ;  Horts- 
man  v.  Henshaw,  II  How.  177. 

(p)  Wilkinson  v.  Johnson,  3  B.  &  C.  428.  Abbott,  C.  J.  said :  "  A  bill  is  carried 
for  payment  to  the  person  whose  name  appears  as  acceptor,  or  as  agent  of  an  acceptor, 
entirely  as  a  matter  of  course.  The  person  presenting  very  often  knows  nothing  of  the 
acceptor,  and  merely  carries  or  sends  the  bill  according  to  the  direction  that  he  finds 
upon  it ;  so  that  the  act  of  presentment  informs  the  acceptor  or  his  agent  of  nothing 
more  than  that  his  name  appears  to  be  on  the  bill  as  the  person  to  pay  it ;  and  it  be- 
hooves him  to  see  that  his  name  is  properly  on  the  bill.  But  it  is  by  no  means  a  mat- 
ter of  course  to  call  upon  a  person  to  pay  a  bill  for  the  honor  of  an  indorser  ;  and  such 
a  call,  therefore,  imports,  on  the  part  of  the  person  making  it,  that  the  name  of  a  cor- 
respondent for  whose  honor  tlic  payment  is  asked  is  actually  on  the  bill ;  but  still  his 
attention  may  reasonably  be  lessened  by  the  assertion  that  the  call  itself  makes  to  him 
in  fact,  though  no  assertion  may  be  made  in  words.  And  the  fault,  if  he  pays  on  a 
forged  signature,  is  not  wholly  and  entirely  his  own  ;  but  begins  at  least  with  the  per- 
son who  thus  calls  upon  him.  And  though,  where  all  the  negligence  is  on  one  side, 
it  may  perhaps  be  unfit  to  inquire  into  the  quantum,  yet  where  there  is  any  fault  in 
the  other  party,  and  that  other  party  cannot  be  said  to  be  wholly  innocent,  he  ought, 
not,  in  our  opinion,  to  profit  by  the  mistake  into  which  he  may,  by  his  own  prior  mis- 
take, have  led  the  other ;  at  least,  if  the  mistake  is  discovered  before  any  alteration  in 
the  situation  of  any  of  the  other  parties,  that  is,  while  the  remedies  of  all  the  parties  en- 
titled to  remedy  are  left  entire,  and  no  one  is  discharged  by  laches." 

(q)  Supra,  §  4. 


S24  NOTES   AND   BILLS.  [CH.  IX. 

SECTION    VI. 

EXTINGUISHMENT   OF   THE   OBLIGATION  INCURRED   BY   ACCEPTANCE. 

The  holder  of  an  accepted  bill,  however  accepted,  may  lose 
his  right  against  the  acceptor  by  waiver,  operation  of  law,  pay- 
ment, release,  or  other  satisfaction.  Payment  by  the  acceptor, 
or  a  valid  release  to  him,  of  course  discharges  tlie  other  parties, 
who  are  regarded  only  as  his  sureties.  And  the  holder  may 
waive  the  acceptor's  obligation  orally,  and  only  by  implication  as 
well  as  expressly,  provided  such  waiver  be  definite,  absolute,  and 
unquestionable. (r)  Still,  however,  it  is  held  that  an  express  dec- 
laration by  the  holder  is  necessary  to  discharge  the  acceptor,  or 
something  which  is  its  complete  equivalent.  Hence  absence  for 
several  years  will  not  suffice. (s)    It  is  undoubtedly  true,  that  con- 

(r)  In  an  action  by  indorsees  against  an  acceptor,  it  was  proved  that  the  plaintiffs, 
having  effects  of  the  drawer  in  their  hands,  said  at  a  meeting  of  the  defendant's  credi- 
itors,  "  that  they  looked  to  the  drawer,  and  should  not  come  upon  the  acceptor  of  the 
bill."  In  consequence  of  this,  the  defendant  assigned  all  his  property  for  the  benefit  of 
his  other  creditors,  and  paid  them  15s.  on  the  pound.  The  drawer's  goods  in  the  plain- 
tiffs' hands  turned  out  to  be  of  little  value,  and  this  suit  was  brought  to  recover  of  the 
acceptor.  "Lord  Ellenhoroiujh  directed  the  jury  to  consider  whether  the  language  used 
by  the  plaintiffs  amounted  to  an  absolute  unconditional  renunciation  l)y  them,  as  hold- 
ers of  the  bill,  of  all  claims  in  respect  of  it  upon  the  defendants  as  acceptors,  whereby  the 
latter  had  entered  into  an  arrangement  with  their  creditors.     In  that  case  the  acceptors 

were  discharged  from  their  liability On  the  other  hand,  if  the  words  only  imported 

that  they  looked  to  the  drawer  in  the  first  instance,  ....  that  they  should  not  resort  to 
them  (the  acceptors)  if  satisfaction  could  be  obtained  from  another  quarter,  they  did  not 
waive  tiieir  remedy  by  this  conditional  promise,  and  the  acceptors  still  continued  liable 
until  the  bill  should  be  actually  paid."  The  jury  found  for  tlie  plaintiffs.  Whatley  v. 
Tricker,  1  Camp.  35.  In  Tarkcr  v.  Leigh,  2  Stark.  228,  a  suit  by  an  indorsee  against  an 
acceptor,  it  was  proved  that,  prior  to  this  action,  the  i)laintiff  had  threatened  to  sue  the 
defendant ;  that  the  defendant  called  upon  the  plaintiff  to  ascertain  the  amount  of 
the  demand ;  that  the  plaintiff  showed  the  defendant  an  account  containing  several 
claims,  and  among  them  the  bill  now  .sued  on  ;  that  the  plaintiff  said  that  he  shoidd 
look  to  the  drawer  for  the  amount  of  the  bill  due,  and  wanted  no  more  of  the  defendant 
than  the  other  claims.  The  defendant  paid  the  amount,  on  the  supposition  that  the 
whole  of  the  plaintiff's  demand  was  included  therein,  which  he  said  he  should  not  other- 
^vise  iiavc  done.  Lord  Ellenborovrjh  was  "of  opinion  that,  in  point  of  law,  the  circum- 
stances do  not  amount  to  an  express  renunciation,  and  nothing  short  of  that  would  be 
soflScient  to  discharge  the  defendant  from  his  acceptance  of  the  bill." 

(s)  Dingwall  v.  Dunster,  1  Doug.  247;  Ellis  v.  Galindo,  id.  2.'J0,  note;  Farqnhar 
V.  Sonthey,  2  Car.  &  P.  497.  In  Anderson  v.  Cleveland,  13  Last,  4.30,  note,  a  suit  by 
an  imlorsec  against  an  acceptor,  no  demand  was  proved  till  three  months  after  the  bill 
became  due,  and  the  drawer  had  in  the  mean  time  become  insolvent.     Lord  Muns/idd 


CH.  IX.]  EXTINGUISHMENT   OF   ACCEPTOR'S   OBLIGATION.  325 

duct  or  language  on  the  part  of  the  holder  which  is  fraudulent, 
or  has  the  effect  of  fraud  in  inducing  tlie  acceptor  to  part  with 
his  security,  or  otherwise  subjects  himself  to  loss,  would  liave  the 
effect  of  waiver. (^)  But  receiving  interest  from  the  drawer,  or 
from  an  indorser,(i<)  or  giving  time  to  them,(?;)  will  not  amount 
to  a  waiver,  although  it  has  been  held  (erroneously,  we  think) 
that  giving  time  to  the  drawer,  where  the  acceptance  was  known 
to  be  for  the  accommodation  of  the  drawer,  discharged  the  ac- 
ceptor. (?^) 

said:  "  The  acceptor  of  a  bill  or  maker  of  a  note  always  remains  liable.  The  accept- 
ance is  proof  of  havintj  assets  in  his  hands,  and  he  ought  never  to  part  with  them  unless 
he  is  sure  that  the  bill  has  been  paid  by  the  drawee." 

{t)  Where  the  holder  agreed  to  consider  an  acceptance  at  an  end,  and  entered  in  his 
bill-book,  "  A's  acceptance  is  at  an  end,"  and  no  demand  was  made  upon  the  acceptor 
for  three  years,  it  was  held  that  the  acceptance  was  waived.  Walpole  v.  Pultency,  cited 
1  Doug.  248.  Where  the  holder  took  a  security  from  the  drawer,  and  notified  the  ac- 
ceptor that  he  had  settled  with  the  drawer,  and  that  the  acceptor  "  need  not  give  him- 
self any  further  trouble,"  it  was  held  that  the  acceptance  was  waived.  Black  v.  Pecle,  id. 
But  in  Adams  v.  Gregg,  2  Stark.  531,  the  accommodation  acceptor  desired  the  holder  to 
give  up  the  acceptance  ;  the  holder  refused,  but  said  that  the  acceptor  should  not  be 
troubled  about  it.  Ahbolt,  C.  J.  thought  that  the  declaration  was  no  discharge.  In  Wiu- 
termute  v.  Post,  4  N.  J.  420,  Haines,  J.  said  :  "  That  a  parol  waiver  is  lawful,  and  will 
discharge  the  acceptor,  there  can  be  no  doubt.  And  the  court  was  correct  in  charging 
the  jury,  that  if,  in  their  opinion,  the  circumstances  of  the  case  and  the  conduct  of  the 
plaintiff  induced  the  defendant  to  believe  that  no  further  resort  would  be  had  to  him, 
it  was  a  waiver.  If  the  plaintiff  induced  the  defendant  fairly  to  suppose  that  he  would 
look  to  the  drawer,  and  not  to  him,  he  thereby  relieved  the  defendant  from  any  further 
care  to  secure  funds  in  his  hands  to  meet  the  dr^ift,  and  relinquished  to  the  defendant 
any  liability  that  resulted  from  the  acceptance.  And  whether  he  did  so  waive  the 
liability  of  the  defendant  was  a  question  of  fact  properly  submitted  to  the  jury."  A 
plea  of  waiver  must  state  that  the  party  waiving  was  tiie  holder  of  the  bill  at  the  time 
of  the  waiver.     Steele  v.  Harmer,  14  M.  &  W.  1.36,  831. 

(«)  Farquhar  v.  Southey,  2  Car.  &  P.  497,  Moody  &  M.  14. 

(v)  Dingwall  v.  Dunster,  1  Doug.  247;  Ellis  v.  Galiudo,  id.  250,  note;  Farquhar 
V.  Southey,  2  Car.  &  P.  497. 

(w)  In  La.Kton  v.  Peat,  2  Camp.  185,  an  action  by  an  indorsee  against  an  acceptor 
for  the  accommodation  of  the  drawer,  Lord  EllenhoroiKjh  ruled  that  the  indorsee,  who 
had  taken  the  bill  for  value,  but  with  full  knowledge  of  the  facts,  and  had,  without  the 
concurrence  of  the  acceptor,  received  part  payment  from  the  drawer,  and  given  him 
time  to  pay  the  remainder,  had  thereby  discharged  the  acceptor ;  on  the  ground  that 
the  acceptor  was  only  a  surety  for  the  drawer.  Conversely,  for  a  like  reason,  in  Col- 
lott  V.  Haigh,  3  Camp.  281,  the  same  judge  held  that  the  drawer  was  not  discharged  by 
giving  time  to  such  an  acceptor.  These  cases  were  doubted  by  Gibhs,  J.,  in  Kcrrison  v. 
Cooke,  3  Camp.  362,  and  by  Mansfield,  C.  J.,  in  Raggett  v.  Axmorr,  4  Taunt.  730.  In 
Fentum  v.  Pocoek,  5  Taunt.  192,  1  Marsh.  14,  where  the  defendants  pleaded  that  they 
accepted  for  the  accommodation  of  the  drawer,  and  that  the  plaintiff,  who  took  the  bill 
for  value  and  without  knowledge  of  the  facts,  had  taken  a  cognovit  from  the  drawer, 
against  the  will  of  the  acceptors,  it  was  held  that  the  acceptors  were  not  discharged,  and 

VOL.  I.  28 


326  NOTES  AND   BILLS.  [CH.  IX. 

Whether  such  waiver  or  renunciation,  however  absolute,  would 
be  valid  if  without  consideration,  may  be  doubted.  There  is, 
or   seems  to  be,  some  authority  for   it. (a;)      But   it  is  certain 

the  Nisi  Prius  rulings  of  Lord  EUenhorough  were  denied  to  be  law.  In  this  last  case  it 
will  be  observed  that  the  plaintiif  learned  the  fact  of  the  suretyship  subsequently  to 
taking  the  bill,  but  before  he  accepted  the  cognovit,  while  in  the  former  cases  the  plain- 
tiff knew  the  facts  at  the  time  he  took  the  bill.  But  as  to  this  Lord  Mansfield  said  : 
"As  it  appears  to  me,  if  the  holder  had  known,  in  the  clearest  manner,  at  the  time  of 
his  taking  the  bill,  that  it  was  merely  an  accommodation  bill,  it  would  make  no  man- 
ner of  difference ;  for  he  who  accepts  a  bill,  whether  for  value,  or  to  serve  a  friend, 
makes  himself  in  all  events  liable  as  acceptor,  and  nothing  can  discharge  him  but 
payment  or  release."  Heath  and  Chambre,  JJ.  concurred.  In  Price  v.  Edmunds,  10 
B.  &  C.  578,  Parke,  J.  said  :  "  I  think  the  decision  in  Fentum  v.  Pocock  was  good  sense 
and  good  law."  In  Yallop  v.  Ebers,  I  B.  &  Ad.  698,  Lord  Tenterden,  C.  J.  said,  that 
"Laxton  v.  Peat  has  been  long  overruled."  Harrison  v.  Courtauld,  3  id.  36  ;  Nichols 
V.  Norris,  id.  41.  See  also  Carstairs  v.  Rolleston,  5  Taunt.  551  ;  Charles  v.  Marsden, 
1  id.  224;  Mallet  w.  Thompson,  5  Esp.  178;  Smith  v.  Knox,  3  id.  46;  Angell  v. 
Ihler,  5  M.  &  W.  600,  4  Jurist,  196  ;  Strong  v.  Foster,  17  C.  B.  201.  In  Ex  parte 
Glendinning,  Buck,  517,  Lord  Eldon  recognized  the  doctrine  of  Laxton  v.  Peat,  2 
Camp.  185,  and  disapproved  of  Fentum  v.  Pocock,  5  Taunt.  192.  See  also  Bank  of 
Ireland  v.  Bercsford,  6  Dow,  233;  Theobald,  Principal  and  Surety,  p.  192,  et  scq. ; 
Jones  V.  Brooke,  4  Taunt.  464. 

The  American  cases  approving  the  doctrine  of  Fentum  v.  Pocock  are,  Bank  of  JNI. 
r.Walker,  9  S.  &  R.  229  ;  Walker  v.  Bank  of  Montgomery  Co.,  12  id  382  ;  Murray  v.  Ju- 
dah,  6  Cowcn,  484  ;  Farmers',  &c.  Bank  v.  Rathbone,  26  Vt.  19  ;  Clopper  v.  Union  Bank, 
7  Harris  &  J.  92  ;  Yates  v.  Donaldson,  5  Md.  389  ;  Hansbrough  v  Gray,  3  Gratt.  356  ; 
Lambert  v.  Sandford,  2Blackf.  137  ;  Cronise  v.  Kellogg,  20  111.  11  ;  Divcrsy  v.  l\Ioor,  22 
id.  330.  Sec  also  Church  v.  Barlow,  9  Pick.  547  ;  Commercial  Bank  ;-'.  Cunningham, 
24  Pick.  270 ;  Pickering  v.  Marsh,  7  N.  H.  192 ;  Grant  v.  Ellicott,  7  Wend.  227  ;  Lord 
V.  Ocean  Bank,  20  Penn.  State,  384.  But  in  Parks  v.  Ingram,  2  Foster,  283,  the  doc- 
trine is  laid  down  that  an  accommodation  acceptor  stands  in  the  position  of  surety 
upon  the  bill,  and  the  drawer  in  that  of  principal ;  so  that  a  discharge  of  the  acceptor 
by  the  holder  does  not  release  the  drawer.  So  Adie  v.  Metoyer,  1  La.  Ann.  254.  See 
In  re  Babcock,  3  Story,  393  ;  Baker  v.  Martin,  3  Barb.  634.  It  does  not  always  dis- 
tinctly appear  from  the  cases  what  the  true  grounds  for  the  decision  were.  The  reason 
in  some  is,  that  an  accommodation  bill  is  just  like  any  other,  and  in  the  earlier  cases 
regrets  have  been  expressed  that  accommodation  bills  ever  came  into  use. 

In  other  cases,  it  seems  to  be  considered  that,  although  the  accommodation  acceptor 
in  fact  may  stand  in  the  relation  of  surety  to  the  drawer,  yet  no  evidence  is  admissible 
to  prove  tliis,  as  it  would  be  allowing  parol  testimony  to  contradict  the  written  terms 
of  the  instrument.  If  this  is  so,  the  rules  as  laid  down  in  some  courts  with  reference  to 
the  point  now  under  consideration  would  seum  to  conflict  with  the  doctrine  sanctioned 
in  the  same  courts,  with  reference  to  admitting  evidence  to  show  whcic>  two  parties  sign 
a  joint  or  joint  and  several  note,  without  expressing  on  its  face  that  one  is  really  a 
surety,  that  the  liolder  knew  the  facts  at  the  time  he  took  the  note,  and  afterwards,  by  a 
valid  agreement,  gave  time  to  tiic  actual  principal. 

(r)  The  head  note  in  Parker  v.  Leigh,  2  Stark.  228,  states  that  the  remuiciatioi. 
must  i)e  express,  and  founded  upon  some  consideration.  But  the  decision  was,  thai 
there  was  no  express  renunciation,  and  therefore  no  discharge  ;  and  )\  is  diflicult  to  sco 
how  this  case  is  an  authority  for  saying  that  an  express  renunciation  needs  a  considera- 


I 


CH.  IX.]  EXTINGUISHMENT   OF   ACCEPTOR'S   OBLIGATION.  327 

that  it  must  have  full  force  and  effect  where  it  has  induced 
the  acceptor  to  do  any  act  whicli  would  be  injurious  to  him  if  the 
obligation  were  afterwards  insisted  on.  We  think  that  a  waiver 
operates  by  estoppel  rather  than  by  contract,  and  we  should 
therefore  state  the  rule  thus.  Any  renunciation  Ibunded  u[)on 
a  valid  consideration,  or  acted  upon  in  good  faith  by  the  acceptor, 
so  as  to  put  him  in  a  worse  situation  than  if  this  renunciation 
had  not  been  made  ;  or  any  act  of  tlie  holder  authorizing  the 
acceptor  to  believe  that  the  holder  had  renounced  all  claim  upon 
him,  which  belief  was  acted  upon  by  the  acceptor,  discharges  him. 
An  acceptor  for  the  accommodation  of  the  drawer,  by  payment 
of  the  bill,  acquires  of  course  a  claim  against  the  drawer.  But 
if  a  bill  be  indorsed  for  the  accommodation  of  the  drawer,  and 
afterwards  accepted,  the  indorser  by  payment  acquires  a  claim 
against  the  acceptor  as  well  as  against  the  drawer  ;  for  he  is  not 
a  surety  for  the  drawer  to  the  acceptor,  but  for  both  to  the 
holder. (y/)  It  has  been  said  in  one  case,  that,  where  a  holder 
promised  an  acceptor  that  he  would  not  sue  him  if  he  would 
swear  that  the  acceptance  was  forged,  he  would  not  be  able  to 
hold  the  acceptor  after  such  an  oath,  although  the  acceptance 
were  not  forged,  and  the  oath  was  false.  But  this,  we  think, 
might  be  doubtful. (s)     Any  material  alteration  of  the  bill,  or  of 

tion  to  support  it.  The  true  ground,  it  is  conceived,  is,  that  a  waiver  works  by  way  of 
estoppel  rather  than  by  way  of  contract.  We  should  prefer  to  state  the  rule  thus  :  An 
express  renunciation,  founded  upon  a  consideration,  or  honestly  and  fairly  acted  upon 
by  the  holder,  so  as  to  put  him  in  a  worse  situation  than  if  the  renunciation  had  not 
been  made ;  or  any  act  upon  the  part  of  the  holder,  giving  the  acceptor  reasonable 
ground  to  infer  that  the  former  had  renounced  all  claim  upon  him;  and  acted  upon, 
—  amounts  to  a  discharge. 

(y)   Weir  v.  Cox,  19  Mart.  La.  368. 

(2)  Stevens  v.  Thacker,  Peake,  Cas.  187.  In  this  case,  when  the  bill  was  presented 
to  the  acceptor,  he  declared  the  acceptance  to  be  a  forgery.  The  holder  agreed  not 
to  sue  the  acceptor,  if  he  would  make  an  affidavit  that  he  never  accepted  the  bill ; 
but,  being  afterwards  convinced  that  the  acceptor  did  accept,  refused  to  receive  the 
affidavit,  and  brought  an  action.  It  was  contended  by  the  defendant,  that  the  plaintiff, 
having  agreed  to  accept  the  defendant's  affidavit  as  evidence  that  he  was  not  the 
acceptor,  could  not  afterwards  recede  from  the  agreement.  But  Lord  Kenijon  said : 
"  Had  the  defendant  sworn  the  affidavit,  I  should  have  held  that  he  had  discharged 
himself  from  the  present  action,  though  such  affidavit  had  been  false ;  for  the  plain- 
tiff, who  had  agreed  to  accept  that  affidavit  as  evidence  of  the  fact,  should  not,  after 
having  induced  the  defendant  to  commit  the  crime  of  perjury,  maintain  an  action  on 
the  bill.  But  as  in  the  present  case  tlie  defendant  had  not  sworn  the  affidavit,  he 
still  remains  liable  to  the  plaintiff's  action,  unless  he  can  prove  the  acceptance  a  for- 
gery."    See  Lloyd  v.  Willau,  1  Esp.  178. 


328  NOTES   AND    BILLS.  [CH.  IX. 

the  acceptance,  without  the  assent  of  the  acceptor,  unless  to  cor- 
rect a  mistake,  discharges  him  from  hability.  This  subject  is 
considered  hereafter. 

A  discharge  of  the  acceptor  by  the  law  of  the  place  where  the 
acceptance  is  made,  and  is  to  be  performed,  is  equally  binding 
everywhere.  Thus,  where,  by  the  law  of  the  country  where  an 
acceptance  is  made,  if  the  drawer  fails,  and  the  acceptor  has  not 
sufficient  effects  of  the  former  in  his  hands  at  the  time  of  accept- 
ing, the  acceptance  becomes  void,  the  acceptor  is  discharged  from 
all  liability. (a) 

A  cancellation  by  the  holder,  or  by  a  third  party  with  the 
holder's  consent,  is  evidence  of  a  waiver,  and  whether  the  can- 
cellation in  the  latter  case  was  by  the  consent  of  the  holder,  or 
not,  is  for  the  jury  to  determine. (6)  The  cancellation  of  an  ac- 
ceptance by  mistake  does  not  operate  as  a  discharge. (c)  But  if 
the  holder,  aware  of  the  mistake,  causes  the  bill  to  be  noted  for 
non-acceptance,  he  is  estopped  from  afterwards  saying  that  the 
bill  was  accepted.  (<i) 

A  release  before  the  maturity  of  the  bill  will  not  discharge  an 
acceptor  from  liability  to  pay  to  a  holder  who  took  the  bill  in 
good  faith,  without  notice  of  the  release  ;  (e)  nor  will  a  release 
by  the  bolder  to  the  drawee  discbarge  the  latter  from  the  obliga- 
tion incurred  by  a  subsequent  acceptance,  on  the  ground  that  he 
was  not  liable  at  the  time  of  the  release. (/)  A  general  release 
by  the  drawer  to  the  acceptor  will,  as  between  tliem,  discharge 
the  acceptor,  though  the  drawer  is  not  the  holder  of  the  bill,  and 
had  not  then  paid  it.(^)  Wiiere  the  drawee  accepted  in  consid- 
eration of  a  I'nture  consignment  of  goods,  with  the  prospect  of  a 
profit  on   the  commission   for  their  sale,  and   the  holder,  with 

(a)  Burrows  v.  Jcmino,  2  Stra.  733. 

(b)  Sweeting  v.  liaise,  9  B.  &  C.  36.5,  4  Man.  &.  R.  287. 

(c)  Novelli  V  Rossi,  2  B.  &  Ad  757;  Haper  v.  Birlvhccii,  15  East,  17;  Fcrnandcy 
V.  Glynn,  1  Camp  426,  note;  Wilkinson  r.  Johnson,  3  B  &  C.  428. 

{d)  Bentinck  v.  Dorrien,  6  Ka.st,  199 ;  Spioat  v.  Matthews,  1  T.  R.  182. 

(e)  1)0(1  V.  Edwards,  2  Car.  &  P.  602. 

(/)  l)raj,'o  V.  Nettcr,  1  Ld.  Raym.  65;  Hartley  v.  Manton,  5  Q.  B.  247.  If  an  ac- 
ceptor plead  a  release,  the  plea  must  set  forth  that  the  hill  was  accepted  prior  to  the 
release.  Asliton  v.  Frcestun,  2  Man.  &  G.  1,  2  Scott,  N.  R.  273.  In  an  action  hy  iho 
payee  again^^t  the  drawer,  a  general  release  to  the  acceptor,  who  had  hecomc  hankrupt, 
and  ohtiiiiicd  his  certificate,  renders  him  a  competent  witness  for  the  defendant.  Scott 
V.  Litford,  I  Camp.  246. 

((J)  Sroti  f.  Lillurd,  1  Camp.  246,  9  East,  347. 


CH.  IX.]  EXTINGUISHMENT   OF   ACCEPTOR'S   OBLIGATION.  329 

knowledge  of  such  acceptance,  received  and  retained  the  'nils 
of  lading,  it  was  held  that  he  thereby  discliarged  the  acccptoi.(/i) 
If  the  drawee  offers  a  conditional  or  partial  acceptance,  and  the 
holder  gives  notice  of  non-acceptance  to  any  prior  party  to  the 
bill,  without  stating  the  nature  of  the  acceptance  offered,  the 
drawee  is  not  liable. (i) 

We  have  already  seen  that  compliance  witli  the  conditions  of 
an  acceptance  is  necessary  in  order  to  charge  the  acceptor,  and 
that,  when  the  conditions  are  performed,  his  liability  immediately 
attaches. (j)  Neglect,  by  the  holder  of  an  acceptance  payable  at 
a  specified  place,  to  present  it  at  that  place,  docs  not  now  dis- 
charge the  acceptor  from  liability,  although  he  can  prove  that  he 
has  been  injured  by  such  neglect,  (/c) 

If  the  holder  receive  from  the  acceptor  another  bill,  indorsed 
by  the  acceptor,  as  satisfaction  or  security  for  the  first  bill,  he 
discharges  him,  both  as  acceptor  and  indorser,  by  neglect  to 
give  him  notice  of  the  dishonor  of  the  last  bill ;  (/)  but  not  if 
the  last  bill  was  given  as  collateral  security,  and  not  indorsed 
by  him.(m) 


(h)  Mason  v.  Hunt,  1  Doug.  297. 

(/)   S|)roat  V.  Matthews,  1  T.  R.  182;  Bcntinck  v.  Dorrien,  6  East,  199. 

(./)  'S'»/»-«,  §  3. 

(k)  Sehag  V.  Abitbol,  4  Maule  &  S.  462  ;  Turner  v.  Hayden,  4  B.  &  C.  1,  6  Dow  & 
R.  7  ;   Rhodes  v.  Gent,  5  B.  &  Aid.  244. 

(/)  Bridges  v.  Berry,  3  Taunt.  130.     See  Kearslake  v.  Morgan,  5  T.  R.  513. 

(m)  Bishop  v.  Rowe,  3  Maule  &  S.  362.  See  Hickling  v.  Hardey,  7  Taunt.  312; 
Goodwin  V.  Coates,  1  Moody  &  R  221. 


90  • 


3S0  ^'OTES   AND   BILLS,  [CH.  X 


CHAPTER    X. 

PRESENTMENT  FOR  ACCEPTANCE. 


SECTION    I. 

OF    THE   EIGHTS    AND    DUTIES    OF    A   PAYEE    BEFORE   ACCEPTANCE. 

After  acceptance  the  payee  of  a  bill  is  in  much  the  same 
position  as  the  payee  of  a  note  ;  but  the  payee  of  a  bill  not  yet 
accepted  holds  an  instrument  which  is  incomplete.  We  will 
therefore  first  consider  what  he  is  bound  to  do,  and  what  he  has 
a  right  to  expect  in  respect  to  acceptance. 

His  duty  is  to  present  the  bill  for  acceptance  to  the  right  per- 
son, at  the  right  time  and  place,  and  in  the  proper  way.  His 
right  is  to  expect  to  receive  an  immediate,  full,  and  uncondi- 
tional acceptance.  But  there  seems  to  be  no  principle  of  law 
by  which  the  holder  of  a  negotiable  bill  of  exchange,  where  noth- 
ing has  occurred  which  can  be  construed  either  as  an  acceptance 
or  a  binding  agreement  to  accept,  can  demand  acceptance  ;  and, 
in  case  of  refusal,  sue  the  drawee.  Nor  would  the  usage  of 
trade  or  custom  be  sufficient  to  give  the  holder  the  right  to  sue, 
even  thougli  the  drawee  have  funds  of  the  drawer  in  his  hands, 
and  ought  in  honor  to  accept.  His  refusal  so  to  do,  although 
without  reason,  and  inconsistent  with  tlie  principles  of  fair  and 
honest  dealing,  does  not  form  any  good  ground  for  the  com- 
mencement of  legal  proceedings  against  him  on  that  account. (/i) 

(n)  Attempts  by  the  holder  to  hold  the  drawee  liable  without  acceptance  were  made 
without  avail  in  Mandeville  v.  Welch,  5  Wiicat.  277,  where  the  suit  was  hrouj^lit  in  the 
name  of  the  drawer ;  Tiernan  v.  Jackson,  5  Pet.  .'J80  ;  Schiininelpcnnich  v.  Bayard, 
1  id.  264;  Luflf  v.  Pope,  .5  Hill,  413,  7  id.  577;  N.  Y.  &  Virj;inia  State  Banlv  v 
Gibson,  .")  Ducr,  .'>74.  In  this  last  case  Duer,  J.  said  in  substance  :  The  law  is  well 
settled,  tliaf,  altliou|j;h  the  refusal  of  tlie  drawee  to  accept,  who  has  funds  in  his  hand* 
wiiich  he  ou^'ht  to  apply  to  the  payment  of  the  i)ill,  may  render  him  lial)ie  in  damajies 
to  the  drawer,  there  is  no  such  privity  between  Iiim  and  the  hold<r  of  the  bill  as  can 
entitle  the  hitter  to  maintain  an  action  against  him.     Sec  also  Poydras  r.  Ifclamaro. 


CH.  X.]        EIGHTS,   ETC.   OF  A   PAYEE   BEFORE   ACCEPTANCE.  331 

The  reason  on  which  it  has  sometimes  been  urged  that  the 
drawee  may  be  liable,  is  that  a  bill  of  exchange  operates  as  an 
equitable  assignment  or  appropriation  of  the  funds  ;  and  that  the 
drawee,  after  having  received  notice  of  the  assigrmient,  becomes 
liable  to  the  holder,  and  if  he  afterwards  part  with  the  funds, 
he  does  so  at  his  peril.  There  may  be  some  dicta  to  the  effect 
that  a  bill  of  exchange  is  an  assignment, (o)  but  no  case  that  we 
are  aware  of,  with  tlie  exception  of  one,  has  held  this  doctrine  in 
an  unqualified  way,  and  that  case  must  be  considered  as  over- 
ruled.(p)  The  doctrine  is  well  settled,  that  before  acceptance  a 
negotiable  bill  for  a  part  of  the  funds  is  no  assignment,  but 
becomes  one  on  the  drawee's  signifying  his  assent,  by  accepting 
the  bill.(<7) 

13  La.  98;  Harris  v.  Clark,  3  Comst.  93.  The  drawee  was  held  in  Corser  w.  Craig, 
I  Wash.  C.  C.  424.  In  Luff  v.  Pope,  5  Hill,  413,  Branson,  J.  said:  "If  the  drawee 
refuse  to  accept,  tliere  is  no  contract  between  him  and  the  holder,  and  no  action  will 
lie.  And  this  is  so  although  the  drawee  had  funds,  and  ought  in  justice  to  the  drawer 
to  have  paid  the  bill." 

The  language  of  Sloiij,  J.,  in  Mandeville  ii.  Welch,  5  Wheat.  277,  infra,  note  q, — 
"  unless  an  obligation  to  accept  may  be  fairly  implied  from  the  custom  of  trade,  or  the 
course  of  business  between  tlie  parties  as  a  part  of  their  contract,"  —  is,  it  is  suggested, 
rather  broader  than  the  cases  would  seem  to  warrant.  For  it  is  supposed  that  the 
almost  universal  usage  is  for  the  drawee,  when  he  has  funds,  to  accept ;  and  yet  the 
fact  that  he  has  funds  is  not  sufficient  to  raise  any  implication  that  any  contract  exists 
between  the  drawee  and  the  holder. 

(o)  Ejjre,  C.  J.,  in  Gibson  v.  Minet,  I  H.  Bl.  569,  602,  said  :  "  The  theory  of  a 
bill  of  exchange  is,  that  the  bill  is  an  assignment  to  the  payee  of  a  debt  due  from  the 
acceptor  to  the  drawer."  It  may  be  remarked,  however,  that  it  does  not  appear  clearly 
whether  the  learned  judge  was  referring  to  a  bill  already  accepted,  or  to  one  unaccepted. 
But  this  dictum  has  been  referred  to  as  applicable  to  an  unaccejited  bill,  and  the  same 
remark  is  to  be  found  in  other  cases. 

(p)  Corser  v.  Craig,  1  Wash.  C.  C.  424.  In  this  case  the  indorsee  of  a  bill  sued  the 
drawee  in  the  name  of  the  payee  and  indorser,  the  drawee  having  refused  to  accept. 
Before  judgment  the  funds  were  attached  on  trustee  process,  as  the  property  of  the 
payee  and  indorser.  The  plaintiff  recovered,  notwithstanding  this,  on  the  ground  that 
the  bill  was  an  assignment  of  the  funds.  Washington,  J.  said  :  "  If  the  drawee  refuse  to 
accept,  the  holder  may  sue  the  drawer,  or  the  drawee  in  the  name  of  the  drawer,  for 
the  debt  originally  due,  in  consequence  of  the  implied  contract  of  the  assignor  of  a 
chose  in  action  that  the  debtor  shall  pay,  and  on  failure,  that  the  assignor  will." 

(q)  In  Mandeville  v.  Welch,  5  Wheat.  277,  Story,  J.  remarked  :  "  It  is  said  that  a 
bill  of  exchange  is  in  theory  an  assignment  to  the  payee  of  a  debt  due  from  the 
drawee  to  the  drawer.  This  is  undoubtedly  true  where  the  bill  has  been  accepted, 
whether  it  be  drawn  on  general  funds,  or  a  specific  fund,  and  whether  the  bill  be  in  its 
own  nature  negotiable  or  not;  for  in  such  cases  the  acceptor,  by  his  consent,  binds 
and  appropriates  the  funds  for  the  use  of  the  payee."  "  But  where  the  order  is  drawn 
on  a  general  or  a  particular  fund,  for  a  part  only,  it  does  not  amount  to  an  assignment 
of  that  part,  or  give  a  lien  as  against  the  drawee,  unless  he  consents  to  the  appropria- 


332  NOTES   AND    BILLS.  [CH.  X. 

It  has  been  said,  that,  even  after  a  conditional  acceptance, 
the  bill  cannot  in  strictness  be  held  to  have  that  effect,  since 
the  drawee  becomes  bound  by  reason  of  the  contract  of  ac- 
ceptance, irrespective  of  the  funds  in  his  hands. (y)  But  the 
theory  is,  even  in  such  a  case,  that  funds  to  the  amoiint  of  the 
bill  have  been  assigned,  and  that  the  acceptor  is  estopped  from 
setting  up  any  such  objection  as  that  there  were  no  funds  to 
assign.  Whether  a  negotiable  bill  for  the  whole  amount  of  the 
funds  can  operate  as  an  assignment,  may  not  be  clearly  settled, 
perhaps,  upon  authority ;  but  on  principle  it  may  well  be  doubted 
whether  it  would  have  this  effect  at  law. (5)     If  it  is  an  assign- 


tion  by  an  acceptance  of  the  draft,  or  an  obligation  to  accept  may  be  fairly  implied 
from  the  custom  of  trade,  or  the  course  of  business  between  the  parties  as  a  part  of 
their  contract.  The  reason  of  this  principle  is  plain.  A  creditor  shall  not  be  per- 
mitted to  split  up  a  single  cause  of  action  into  many  actions  without  the  assent  of  his 
debtor,  since  it  may  subject  him  to  many  embarrassments  and  responsibilities  not  con- 
templated in  his  original  contract.  He  has  a  right  to  stand  on  the  singleness  of  his 
original  contract,  and  to  decline  any  legal  or  equitable  assignment  by  which  it  may  be 
broken  into  fragments.  When  he  undertakes  to  pay  an  integral  sum  to  his  creditor,  it 
is  no  part  of  his  contract  that  he  shall  be  obliged  to  pay  in  fragments  to  any  other  per- 
sons. So  that  if  the  plaintiff  could  show  a  partial  assignment  to  the  extent  of  the  bills, 
it  would  not  avail  him  in  support  of  the  present  suit."  See  also  Gibson  v.  Cooke,  20 
Pick,  15;  I'oydras  v.  Delamare,  13  La.  98  ;  Cowperthwaite  v.  Sheffield,  1  S.indf.  416,3 
Comst.  24.3.  In  Harris  v.  Clark,  .3  Comst.  93,  Ru(jgles,  J.  said  :  If  the  bill  "  had  been 
accepted  by  the  drawees,  it  would  have  operated  as  an  assignment  of  so  much  money 
in  the  hands  of  the  drawees,  and  it  would  have  afforded  the  j>laintiff  a  remedy  against 
them."  And  on  p.  II. 5  :  "  It  is  clearly  .settled  that  no  action  at  law  will  lie  in  favor  of 
the  hobler  of  a  bill  of  exchange  against  the  drawee,  unless  he  accepts  the  bill."  "  The 
researcli  of  the  counsel  for  the  plaintiff  has  not  enabled  me  to  find  a  case  wliere  it  has 
been  held  that,  ujjon  a  negotiable  bill  of  exchange,  the  drawee  has  been  made  liable  in 
equity  to  the  holder  of  the  bill  without  his  acceptanci;  or  assent." 

(r)  HnrUmt,  J.,  Cowperthwaite  v.  Sbeffiold,  1  Sandf.  416,  infra,  note  s 
(s)  In  Cowperthwaite  v.  Sheffield,  3  Comst.  24;},  I/iirlhnt,  J.  said  :  "  A  proper  bill  of 
exchange  does  not  of  itself  operate  as  an  assignment  to  the  payee  of  funds  of  the  draw- 
er in  the  hands  of  the  drawee,  and  even  after  an  unconditional  acceptance  it  cannot  in 
strictness  be  held  to  have  that  effect,  since  the  drawee  becomes  bound  by  reason  of  the 
contract  of  acceptance,  irrespective  of  the  funds  in  his  hands.  He  may  refuse  when  ho 
ought  to  accept  by  rea.son  of  his  having  funds,  and  yet  neither  he  nor  the  funds  would 
in  any  way  be  bound  or  affected  by  the  bill."  In  the  same  case,  reported  in  1  vSandf. 
416,  Viinderpofl,  J.  said  :  "  If  these  bills  bad  been  in  the  form  of  orders  for  the  entire 
proceeds  of  the  shipment,  they  might,  after  notice  to  the  drawee,  have  operated  as  an  as- 
signment of  such  proceeds  But  then  they  would  not  have  possessed  all  the  character- 
istics of  bills  of  exchange.  If  in  such  form  they  could  be  negotiated,  they  would  on  their 
face  convey  information  to  every  holder  of  the  fuml  on  which  they  were  drawn,  and 
which  they  carried  with  them  "  In  N.  Y.  &  Virginia  State  Bank  v.  Gib.son,  5  Duer,  574, 
Diter,  J.  said  :  "  A  bill  of  exchange,  in  the  proper  sense  of  the  term,  never  operates  as  an 
assignment  of  the  fund  against  which  it  is  drawn,  and  when  there  has  been  no  binding 


CH.  X.]        RIGHTS,   ETC.    OF   A   PAYEE   BEFORE   ACCEPTANCE.  333 

meiit,  the  question  would  arise  whether  the  holder  must  sue  in 
his  own  name,  or  in  that  of  the  assignor.  If  in  the  latter,  it 
would  seem  to  be  inconsistent  with  the  very  object  and  distin- 
guishing characteristic  of  negotiable  paper,  which  permits  the 
holder  to  take  it  free  from  all  prior  unknown  incumbrances, 
because  his  claim  would  be  liable  to  any  offset  which  the  drawee 
might  have  against  the  drawer.  The  difficulty  in  allowing  the 
suit  to  be  brought  in  the  name  of  the  holder  would  be,  that  there 
is  no  privity  of  contract  between  him  and  the  drawee.  The 
latter  has  had  no  connection  whatever  with  him,  and  there  is  no 
chance  for  the  law  of  estoppel  to  apply,  as  in  the  case  where 
there  has  been  a  promise  to  accept,  although  not  made  directly 
to  the  party  seeking  to  avail  himself  of  it.  It  has  been  hold  that 
a  non-negotiable  draft  for  the  whole  of  a  particular  fund  operates 
as  an  assignment,(^)  though  it  is  somewhat  difficult  to  see  how 
its  operation  could  be  such  where  the  drawee  expressly  refuses 
to  accept,  (m) 


promise  to  accept,  and  no  express  agreement  by  which  a  trust  has  been  created,  it  is 
only  by  a  positive  acceptance,  in  the  form  which  the  statute  prescribes,  that  a  ri<;;ht  of  ac- 
tion against  the  drawee  can  accrue  to  the  holder."  No  case  has  been  found  in  which 
a  negotiable  bill  has  been  drawn  for  the  whole  amount  of  the  fund,  and  the  drawee  has 
been  sued  on  refusal  to  accept.  But  in  Gibson  v.  Cooke,  20  Pick.  15,  Dewey,  J.  said  : 
"  It  seems  also  to  be  equally  well  settled,  that  a  draft  by  the  creditor  on  his  debtor,  in 
the  form  of  a  bill  of  exchange  to  the  amount  of  the  debt,  or  the  whole  fund  in  his  hands, 
is  a  good  and  valid  assignment  of  the  debt  or  fund";  —  citing  Cutts  v.  Perkins,  12 
Mass.  209 ;  Crocker  v.  Whitney,  10  Mass.  318 ;  Clarke  v.  Adair,  cited  4  T.  R.  343  ; 
bobbins  v.  Bacon,  3  Greenl.  346.  But  in  none  of  these  cases  did  the  question  arise  on 
ft  negotiable  bill. 

(t)  Cutts  V.  Perkins,  12  Mass.  209  ;  Robbins  v.  Bacon,  3  Greenl.  346  Morton  v.  Nay. 
lor,  1  Hill,  583.  In  Cutts  v.  Perkins,  the  drawee  consented  to  the  assigntncnt  by  accept- 
ing. In  Robbins  v.  Bacon,  the  language  of  Stonj,  J.,  in  Mandcville  v.  Welch,  5  Wheat. 
277,  that  "where  an  order  is  drawn  for  the  whole  of  a  particular  fund,  it  amounts  to  an 
equitable  assignment  of  that  fund,  and  after  notice  to  the  drawee  it  binds  the  fund  in 
his  hands,''  is  cited  and  approved.  If  this  doctrine  is  correct,  such  a  draft  need  never  be 
accepted,  but  notice  to  the  drawee  is  all  that  is  requisite.  In  Morton  v.  Naylor,  1  Hill, 
583,  a  landlord  gave  an  order  on  his  tenant  to  pay  to  A  the  rent  accruing  during  a  cer- 
tain time',  which  the  tenant,  on  presentment  of  the  order,  said  he  would  do.  The 
landlord  subsequently  notified  the  tenant  not  to  pay,  but  the  latter  disregarded  the 
notice  and  paid  the  order.  Held,  that  the  tenant  had  a  right  so  to  do,  and  that  the  land- 
lord's claim  for  the  rent  was  extinguished.  In  this  case  it  will  be  seen  that  the  drawee 
consented  to  the  assignment,  and  accepted,  a  verbal  acceptance  of  a  non-ncgoriable  order 
being  valid  as  an  acceptance,  but  the  court  in  their  opinion  said :  "  The  order  to  the 
tenant  was  an  equitable  assignment  of  the  rent  in  question  with  notice  to  the  tenant, 
who  was  bound  to  pay  it  according  to  the  order,  whether  he  liad  accepted  or  not." 

(«)  In  Williams  v.  Everett,  14  East,  582,  a  party  remitted  a  bill  to  the  defendants,  hia 


834  NOTES   AXD   BILLS.  [CH.  X. 

Where  the  draft  is  not  negotiable,  and  drawn  for  a  part 
of  the  funds,  the  cases  are  somewhat  conflicting.  Perhaps 
the  weight  of  authority  favors  the  rule,  that  tlie  assent  of 
the  drawee  is  necessary  f  but  there  are  cases  that  appear  to 
hold  that  it  opei'ates  as  an  assignment  of  the  particular  fund 
from   the   time   the  drawee   receives  notice. (i;)      In   courts   of 

bankers,  with  directions  to  pay  the  amount  of  the  bill,  when  collected,  in  certain  specified 
proportions  to  the  plaintift'  and  other  persons,  who  would  produce  letters  of  advice  on 
the  subject.  Before  the  maturity  of  the  bill,  the  plaintiff  notified  the  defendants  that  he 
had  received  letters  from  the  remitter,  ordering  payment  out  of  the  remittance,  and 
offered  the  defendants  indemnity,  if  the  defendants  would  indorse  the  bill  over  to  him. 
The  defendants  refused  to  act  on  the  letter,  or  to  indorse  the  bill,  but  admitted  that  they 
had  received  directions  for  the  application  of  the  money.  On  maturity  of  the  bill,  the 
defendants  received  the  amount,  and  the  plaintiff  again  demanded  payment.  Held, 
that  the  act  of  receiving  the  bill,  and  subsequently  collecting  it,  and  notice  of  the 
directions,  did  not  bind  the  defendants  to  the  plaintiff,  against  their  express  disseiU,  to 
apply  the  money  in  discharge  of  the  plaintiff's  debt,  and  that  the  plaintiff  could  main- 
tain no  action  against  the  defendants  for  money  had  and  received  to  his  use,  for  want 
of  privity  of  contract,  and  that  the  property  in  the  bill  still  remained  in  the  remitter. 
In  Yates  v.  Bell,  3  B.  &  Aid.  643,  a  bill  of  exchange  payable  at  the  house  of  A  had 
been  presented  there  for  payment,  and  dishonored,  and  the  acceptor  afterwards  remitted 
to  A  money  to  pay  the  dishonored  bill,  f^nd  also  one  of  less  value.  A  replied,  in  a 
letter,  that  he  had  received  the  money,  and  that  it  should  be  carried  to  the  acceptor's 
account.  He  afterwards  paid  the  smaller  bill.  It  was  decided  that  the  holder  of  the 
original  bill  could  maintain  no  action  against  A,  for  want  of  privity  of  contract. 

(v)  In  Gibson  v.  Cooke,  20  Pick.  15,  a  person  entitled  to  quarterly  payments  from 
a  trustee  drew  an  order  on  the  trustee,  to  pay  to  a  creditor  "  as  the  drawer's  income 
should  become  due,"  for  a  sum  which  did  not  correspond  precisely  in  amount  with  one 
or  any  number  of  the  sums  then  due  the  drawer.  The  latter  refused  to  accept.  Held, 
chat  the  order  was  not  an  assignment,  and  that  the  payee  could  not  maintain  an  action 
ugainst  the  drawee  in  the  name  of  the  drawer.  In  Mandeville  r.  Welch,  5  Wheat.  626, 
it  is  laid  down,  that  an  order  for  a  part  of  a  fund  does  not  amount  to  an  assignment. 
See  Robbins  v.  Bacon,  3  Greenl.  346.  In  Poydras  v.  Dclamare,  13  La.  98,  the  drawee 
refused  to  accept,  and  the  order  was  held  to  be  no  assignment.  In  Cowpcrthwaite  r. 
Sheffield,  1  Sandf  416,  Vanderpoel,  J.  said  :  "  Where  an  order  is  drawn  for  a  ])art  of  the 
fund  only,  it  docs  not  amount  to  an  assignment  of  that  part,  or  give  a  lien  as  against 
the  drawee,  unless  ho  consent  to  the  ajipropriation  by  an  acceptance  of  the  draft." 

For  cases  from  which  it  may  be  inferred  that  such  a  draft  is  a  good  assignment,  see 
Morton  v.  Naylor,  1  Hill,  583,  where  it  is  said  that  the  same  rule  ajjplies  at  law  as  in 
equity.  Sec  Taylor  v.  Bates,  5  Cowen,  376  ;  Wheeler  v.  Wheeler,  9  id.  34  ;  Pattison  v. 
Hull,  id.  747  ;  Peyton  v.  Hallett,  I  Caincs,  363.  In  the  last  case  the  question  arose  on 
the  point  as  to  whether  a  witness  in  a  suit,  who  held  a  draft  for  a  jiart  of  the  money 
sought  to  be  recovered  in  that  suit,  was  an  inoomj)etcnt  witness  on  the  ground  of  inter- 
est. Liinmjslon,  J. :  "  The  order  he  had  obtained  amounteil  to  an  assigimicnt  of  the 
property  to  the  extent  of  his  demand,  and  the  agent  after  its  exhibition  to  him  would  at 
his  peril  have  parted  with  it  to  the  ])laintiffs,  or  to  any  other  person."  Lewis,  C.  J.,  in 
a  dissenting  opinion,  said  :  "  The  bill  drawn  in  his  favor  on  the  agent  has  never  been 
accepted,  nor  has  the  fund  out  of  which  it  was  to  be  paid  ever  come  to  liis  hands. 
The  witness  then,  in  my  conception,  had  no  interest  in  the  fund." 


CH    X.]        RIGHTS,   ETC.    OF   A   PAYEE   BEFORE   ACCEPTAXCE.  335 

equity,  where  the  doctrine  of  equitable  assignment  was  first  laid 
down,  such  drafts  have  been  held  to  be  an  assignment,  cSven 

In  the  following  cases  accepted  drafts  for  a  part  of  the  fund  were  held  to  be  assign- 
ments. Legro  V.  Staples,  16  Maine,  252  ;  Johnson  v.  Thayer,  17  id.  401  ;  Debesse  v. 
Napier,  1  McCord,  lOG  ;  M'Mcnomy  v.  Farrers,  3  Johns.  71.  Where  the  drawer  had 
become  bankrupt,  and  the  assignee  sued  the  drawee,  but  failed  to  recover,  an  order 
disclosed  by  one  summoned  as  trustee  to  pay  over  the  money  in  his  hands,  though  not 
expressed  to  be  for  value  rcceived,  is  prima  facie  an  assignment.  Adams  v.  liobinson, 
1  Pick.  461.  In  Clarke  v.  Adair,  cited  by  Buller,  J.,  4  T.  R.343,  an  officer  drew  a  bill 
on  an  agent  of  the  regiment  payable  out  of  the  first  money  that  should  become  due  to 
him  on  account  of  arrears.  The  agent  refused  to  accept  absolutely,  but  said  he  would 
pay  when  effects  came  to  hand.  The  drawer  died,  and  his  administrator  brought  an 
action  to  recover  the  money.  It  was  allowed  by  all  parties  that  this  was  not  a  bill  of 
exchange  within  the  custom  of  merchants.  But  Lord  Mansfield  held  it  to  be  an  assign- 
ment for  a  valuable  consideration,  with  notice  to  the  agent,  and  that  he  was  bound  to 
pay  it. 

The  question  of  the  effect  of  a  bill  as  an  assignment  has  sometimes  arisen  in  cases 
where  the  drawee  was  not  interested.  Tims,  in  Cowperthwaite  v.  Sheffield,  1  Sandf.  416, 
3  Comst.  243,  the  consignor  of  a  shipment  of  cotton  drew  bills  on  the  consignee  against 
the  proceeds,  and  advised  him  thereof  The  bills  were  presented  for  acceptance  before  the 
goods  arrived,  and  acceptance  was  refused  The  consignee  afterwards  received  the  goods, 
sold  them,  and,  by  a  subsequent  arrangement  between  him  and  the  consignor,  the  pro- 
ceeds were  deposited  with  a  third  party,  to*  be  paid  over  to  the  consignor  when  his 
creditors  should  assent  thereto,  the  consignor  intending  to  apply  them  to  the  payment 
of  the  bill.  The  holder  of  the  bills,  who  had  also  other  demands  against  the  con- 
signor, got  possession  of  the  funds,  which  were  sufficient  to  pay  the  bills,  by  a  judicial 
proceeding  founded  on  the  bills  and  the  other  demands.  In  an  action  against  the  in- 
dorser  of  the  bill,  it  was  held  that  the  bills  and  letter  of  advice  did  not  operate  as  an 
appropriation  of  the  proceeds  to  the  payment  of  the  bills,  and  the  facts  stated  did  not 
sustain  a  plea  of  payment.  In  Harris  v.  Clark,  3  Comst.  93,  a  bill  of  exchange  was 
intended  to  be  given  by  the  drawer  as  a  mortuary  gift,  and  the  plaintiff  contended  that 
it  was  valid  as  such,  or,  if  not  a  mortuary  gift,  it  was  an  assignment.  The  drawees 
had  refused  to  accept,  due  notice  had  been  given,  and  the  holder  sued  the  executors  of 
the  drawer.  It  was  held  that  the  bill  was  valid  neither  as  a  mortuary  gift  nor  an  as- 
signment.    See  the  remarks  of  Ruggles,  J.,  cited  supra,  p.  332,  note  q. 

In  Bradley  v.  Root,  5  Paige,  632,  an  order  to  pay  a  debt  out  of  a  particular  fund 
belonging  to  the  debtor  was  held  to  be  an  equitable  assignment,  pro  tanto,  and  to  give 
the  creditor  who  received  the  order  a  specific  equitable  lien  on  the  fund.  In  Marine, 
&c.  Bank  v.  Jauncey,  3  Sandf  257,  1  Barb.  486,  it  was  held  that  drawing  a  bill  on  the 
consignee  of  cotton  purchased  with  its  avails  does  not  operate  as  an  equitable  transfer 
of  the  cotton  to  a  party  who  discounts  the  bill,  or  give  him  any  lien  upon  the  cotton  or 
its  proceeds  in  the  hands  of  the  consignee  and  acceptor ;  nor  will  a  verbal  understand- 
ing at  the  time  the  bill  was  discounted,  that  the  proceeds  should  be  applied  to  the  pay- 
ment of  the  bill,  affect  such  lien.  An  order  drawn  upon  a  particular  fund  specified  in  the 
order  by  which  the  drawer  divests  himself  of  all  control  over  the  same,  is  an  equitable 
assignment  of  the  same,  but  such  an  order  is  not  a  bill  of  exchange.  Ibid.  After  drawing 
a  bill,  the  drawer  has  the  same  control  of  his  funds  in  the  hands  of  the  drawee  as  he  had 
before  ;  and  if  the  same  funds  come  to  his  own  hands,  the  holder  has  no  equitable  lien 
upon  them.  Winter  v.  Drury,  1  Seld.  525.  The  head  note  in  this  case  must  refer  to 
the  case  where  the  drawee  has  not  accepted,  for  it  is  well  settled  that  an  acceptor  has  a 


336  XOTES   AXD   BILLS.  [CH.  X. 

against  the  will  of  the  drawee. (tf?)  Whether  a  bank-check  is  so 
far  ditfereut"  from  a  negotiable  bill  that  it  may  operate  as  an 
assignment,  and  subject  a  bank  on  which  it  is  drawn  to  an 
action,  is  considered  subsequently. (x)     It  must  be  noticed,  how- 


lien  on  the  funds  or  goods  for  his  indemnity.  See  this  case,  infra.  In  order  to  consti- 
tute an  equitable  assignment  of  money  by  means  of  an  order,  the  order  must  direct  the 
payment  out  of  a  particular  fund,  and  not  generally  out  of  any  money  to  be  received. 
Phillips  V.  Stagg,  2  Edw.  Ch.  108  ;  Harrison  v.  Williamson,  id.  430.  A  draft  payable 
out  of  a  specific  sum,  accepted  jjayable  out  of  the  amount,  is  an  equitable  assignment 
of  that  amount.  Vreeland  v.  Blunt,  6  Barb  182.  In  Winter  v.  Drury,  1  Scld.  .525,  it 
was  held  that  an  ordinary  bill  of  exchange  prior  to  acceptance  gives  the  holder  no  lien, 
legal  or  equitable,  upon  tlie  funds  of  the  drawer  in  the  Iiauds  of  the  drawee.  In  this 
case  the  bill  was  drawn  for  a  larger  amount  than  the  funds  in  the  possession  of  the 
drawee,  and  the  drawer,  having  sold  tlie  bill,  assigned  all  his  property  and  absconded. 
The  drawee  refused  to  accejit,  and  afterwards  transmitted  all  the  funds  of  the  drawer 
to  the  latter  by  a  check  enclosed  in  a  letter.  The  check  and  letter  were  received  by  the 
assignee  of  the  drawer,  and  the  check  passed  to  the  credit  of  the  estate.  The  holder 
filed  a  bill  in  etiuity  against  the  assignee  to  compel  him  to  pay  over  the  "amount  of  the 
check,  but  the  bill  was  dismissed. 

In  Row  V.  Dawson,  1  Ves.  Sen.  3.31,  a  draft  on  a  fund  due  out  of  a  particular  fund 
was  held  an  assignment  as  against  the  assignees  of  the  drawer.  So  Ycates  v.  Groves, 
1  Ves.  Jr.  280 ;  Ex  parte  Alderson,  1  Mad.  53  ;  Watson  v.  Duke  of  Wellington,  1 
Rus.  &  M  602.  See  Ex  parte  Prescott,  3  Deac.  &  C.  218 ;  Burn  v.  Carvallio,  4  Mylne 
&  C.  690 ;  Fitzgerald  v.  Stewart,  2  Sim.  333,  2  Rus.  &  M.  457  ;  Malcolm  v.  Scott,  3 
Hare,  39.  Cases  in  which  the  rule  is  laid  down  that  the  draft  on  a  particular  fund 
operates  as  an  assignment  after  notice  to  the  drawee,  and  that  the  consent  of  tlie  latter 
is  immaterial,  are  Row  v.  Dawson,  1  Ves.  Sen.  331,  which  was  a  case  between  the  as- 
signee of  the  drawer  and  the  payee.  The  draft  seems  to  have  been  in  the  hands  of  the 
drawee,  and  nothing  appears  to  show  that  the  latter  dissented.  But  Lord  Chancellor 
llardwicle  said,  in  his  opinion:  "  The  drawee  could  not  have  paid  the  money  to  the 
drawer,  supposing  lie  had  not  been  bankrupt,  without  making  himself  liable  to  the 
defendants  ;  because  he  would  have  paid  it  with  full  notice  of  this  assignment  for  valu- 
able consideration."  IJx  parte  South,  3  Swanst.  392,  where  Lord  Chancellor  Eldon 
Eaid  :  "  It  has  been  decided  in  bankruptcy,  tliat  if  a  creditor  gives  an  order  on  his 
debtor  to  pay  a  sum  in  discharge  of  his  debt,  and  that  order  is  shown  to  tlie  debtor,  it 
binds  him  ;  on  the  other  iiand,  this  doctrine  has  been  brought  into  doubt  by  some 
decisions  in  the  courts  of  law,  who  require  that  the  party  receiving  the  order  should 
in  some  way  enter  into  a  contract.  Israel  v.  Douglas,  1  II.  Bl.  239  ;  Legh  i-.  Legh, 
1  B.  &  P.  447  ;  Tatlock  v.  Harris,  3  T.  R.  180.  That  has  been  the  course  of  their 
decisions,  but  is  certainly  not  the  doctrine  of  this  court."  Lett  v.  Morris,  4  Sim.  607. 
In  tills  case  the  draft  was  payable  by  instalments.  The  drawee  paid  the  first  instal- 
ment to  the  drawer,  wlio  handed  it  over  to  the  plaintiff",  the  holder  of  the  draft.  The 
second  instalment  was  paid  by  the  drawee  to  the  plaiiitifT's  clerk,  the  drawer  not  being 
present.  Tlic  drawee,  on  the  third  instalment  becoming  due,  refused  to  pay.  The 
holder  then  filed  a  bill  against  the  drawee  to  compel  him  to  pay  ihc  amount  due,  and 
he  was  obliged  so  to  do.  Sir  L.  Shadwdl,  V.  C.  said  :  "  I  entertain  no  doubt  that  the 
order  amounts  to  an  equitable  assignment." 

{w)  See  cases  in  note,  supra. 

(t)  Infra,  chapter  on  Chocks. 


CH.  X.]         RIGHTS,    ETC.    OF    A    PAYKF.    I'.FFORE    ACCFFTAXCE.  337 

ever,  that  the  payee,  hehig  tlie  holder  of  tlie  bill,  may,  if  he 
chooses,  waive  the  right  of  presenting  it  for  acceptance,  just  as 
he  may  waive  the  right  of  demanding  and  receiving  payment, 
and  so  give  up  the  money.  And  so  he  may  delay  presentment 
for  acceptance,  if  he  chooses  to  do  so.  If  the  bill  be  payable  so 
many  days  after  date,  or  on  a  day  certain,  he  need  not  present  it 
for  acceptance  until  maturity  ;  but  it  must  be  presented  then, 
and  the  right  to  require  acceptance  may  be  considered  as  merged 
in  the  right  to  demand  payment. (s) 

It  is  usual,  and  better  in  such  case,  to  present  before  maturity, 
and  to  ascertain  whether  the  bill  is  to  be  accepted  or  not ;  both 
as  respects  the  holder,  because  the  name  of  the  drawee  on  the 
hill  gives  it  additional  security,  and  enhances  its  negotiability ; 
and  as  respects  the  drawer,  that,  if  acceptance  be  refused,  he 
may  be  better  able  to  withdraw  his  effects  from  the  hands  of  the 
drawee  by  receiving  early  notice  of  the  dishonor.  If  the  holder 
elects  to  present  such  a  bill,  he  must  act  in  case  of  refusal  in 
the  same  way  as  if  bound  to  present ;  (a)  but  this  cannot  affect 
the  rights  of  a  holder  who  purchases  the  bill  before  maturity, 
without  knowledge  of  the  refusal. (6) 


(z)  Blesard  v.  Hirst,  5  Burr.  2670  ;  Goodall  v.  Dolley,  1  T.  R.  712 ;  Dunn  v.  O'Keefe, 
5  Maule  &  S.  282,  6  Taunt.  305,  1  Marsh.  616  ;  Orr  v.  Maginnis,  7  East,  362  ;  Philpott 
V.  Bryant,  3  Car.  &  P.  244,  where  Park,  J.  said  :  "  I  should  destroy  half  the  trade  of 
the  city  of  London  if  I  were  to  hold  that  bills  made  payable  so  many  days  after  date 
must  be  presented  for  acceptance."  Bank  of  Washington  v.  Triplett,  1  Pet.  25,  where 
the  holder's  agent  made  an  unsuccessful  attempt  to  find  the  drawee,  and  gave  no  notice 
either  to  the  holder  or  to  the  drawer.  It  was  held  that  these  facts  did  not  discharge  the 
drawer.  Marshall,  C.  J.  said  :  "  Had  the  Bank  taken  no  steps  wiiatever  to  obtain  an 
acceptance,  no  viohition  of  duty  would,  according  to  the  decisions,  have  been  com- 
mitted. Can  an  unsuccessful  attempt  to  do  what  the  law  does  not  require  place  the 
agent  in  the  same  situation  that  he  would  have  stood  in,  had  the  drawee  been  found, 
and  had  positively  refused  acceptance  ?  "  Townsley  v.  Sumrall,  2  Pet.  170  ;  Wallace 
V.  Agry,  4  Mason,  336,  5  id.  118;  Bachellor  r.  Priest,  12  Pick.  399  ;  Fall  Kiver  Union 
Bank  v.  Willard,  5  Met.  216  ;  Oxford  Bank  v.  Davis,  4  Cush.  188;  Allen  v.  Suydam, 
20  Wend.  321,  17  id.  368;  Bank  of  Bennington  v.  Raymond,  12  Vt.  401  ;  Crosby  v. 
Morton,  13  La.  357  ;  Smith  v.  Roach,  7  B.  Mon.  17  ;  Carmichael  v.  Bank  of  Pa.,  4  How. 
Miss.  567  ;  Glasgow  r.  Copcland,  8  Misso.  268.  In  Chamberlyn  r.  Delarive,  2  Wils.  353, 
a  draft  payable  a  few  days  after  date  was  not  presented  till  four  months.  The  drawee 
had  become  insolvent.  Held,  that  the  payee  had  lost  all  claim  on  the  drawer,  whether 
the  draft  was  negotiable  or  not. 

(a)  See  the  cases  cited  supra,  note  z  ;  U.  S.  v.  Barker,  4  Wash.  C.  C.  464.  So  if  he 
elects  to  consider  what  passes  on  presentment  as  a  refusal  to  accept  Mitchell  v.  De- 
grand,  1  Mason,  176. 

(6)  O'Keefe  v.  Dunn,  6  Taunt.  305,  5  Maule  &  S.  282. 

Vol.  I.— W 


338  NOTES   AND   BILLS.  •'  [CH.  X. 

If  the  bill  be  payable  at  so  many  days  after  sight,  or  demand, 
the  payee,  if  he  continues  in  possession  of  the  bill,  is  then  under 
an  obligation  to  the  drawer  and  to  the  prior  parties,  if  there  be 
any,  to  present  it  within  a  reasonable  time,  in  order  that  the  days 
may  begin  at  the  expiration  of  which  the  bill  is  mature. (c)  The 
payee  has  a  reasonable  time  within  which  to  put  the  bill  into  cir- 
culation, and  so  has  each  successive  holder  for  value. (^)  Bills 
payable  on  demand  or  at  sight  are  not  presented  for  acceptance, 
in  this  respect  being  like  promissory  notes,  and  the  same  is  true 
in  general  with  regard  to  checks  ;  but  there  is  a  custom,  as  we 
shall  see,  for  banks  to  certify  that  checks  drawn  upon  them  by 
customers  are  good,  the  effect  of  which  is  equivalent  to  the  ac- 
ceptance of  a  bill.(e)  It  has  been  held  that  presentment  to  the 
drawee  is  necessary,  even  though  the  drawer  has  requested  him 
not  to  accept. (/)     The  holder  is  not  bound  to  present  again, 

(c)  See  the  cases  cited  supra,  p.  337,  note  z ;  Muilman  v.  D'Eguino,  2  IL  Bl.  565,  where 
Eyre,  C.  J.  said  :  "  The  courts  have  been  very  cautious  in  fixing  any  time  for  an  inland 
bill,  payable  at  a  certain  period  after  sight,  to  be  presented  for  acceptance,  and  it  seems 
to  me  more  necessary  to  be  cautious  with  respect  to  a  foreign  bill  payable  in  that  man- 
ner. If,  instead  of  drawing  their  foreign  bills  payable  at  usances,  in  the  old  way,  mer- 
chants choose  for  their  own  convenience  to  draw  them  in  this  manner,  and  to  make 
the  time  commence  when  the  holder  pleases,  I  do  not  see  how  the  court  can  lay  down 
any  precise  rules  on  the  subject.  I  think,  indeed,  that  the  holder  is  bound  to  jiresent 
the  bill  in  reasonable  time,  in  order  that  the  period  may  commence  from  which  the 
payment  is  to  take  place."  Goupy  r.  Harden,  7  Taunt.  159,  Holt,  342  ;  Fry  i\  Hill, 
7  Taunt.  397  ;  Mcllish  v.  Rawdon,  9  Bing.  416,  2  Moore  &  S.  570;  Mulliek  v.  Kada- 
kissen,  9  Moore,  P.  C.  66,  28  Eng.  L.  &  Eq.  86  ;  Robinson  v.  Ames,  20  Johns.  146; 
Aymar  v.  Beers,  7  Cowen,  705  ;  Prcscott  Bank  v.  Caverly,  7  Gray,  217 ;  Fernnndez  v. 
Lewis,  1  McCord,  322.  In  Dumont  v.  Pope,  7  Blackf  367,  no  time  for  payment  was 
specified.  Presentment  for  acceptance  in  a  reasonable  time  was  held  necessary.  In 
Elting  V.  BrinkerhofF,  2  Hall,  459,  a  non-negotiable  order  to  "pay  to  A  one  hundred 
dollars,"  was  not  presented  till  nearly  six  years  from  date.  Held,  that  if  this  was  an 
inland  bill,  the  drawer  was  discharged  by  the  laches  of  the  holder;  if  a  cIiT>ck,  present- 
ment for  payment  at  any  time  before  the  lapse  of  six  years  was  sufiicient,  unless  tho 
drawer  could  prove  injury. 

id)  Sec  infra.     Tindal,  C.  J.,  Mcllish  v.  Rawdon,  9  Bing.  416,  427. 

(c)  See  infra,  chapter  on  Checks. 

(/)  Hill  V.  Heap,  Dow.  &  R.,  N.  P.  57.  Scd  quare.  In  Pridcaux  ;;.  Collier, 
2  Stark.  57,  the  holder  presented  a  bill  the  day  before  maturity.  The  drawee  refused 
to  accept,  having  no  funds,  but  remarked  that  the  bill  would  not  be  due  till  the  next 
day,  and  that  the  drawer  would  probably  jiut  him  in  funds.  On  the  day  of  maturity, 
the  drawer  told  the  plaintiff  that  he  hoped  the  bill  would  be  paid,  and  that  he  would 
endeavor  to  provide  funds,  and  would  see  him  again.  Tho  bill  was  presented  to 
the  drawees  the  day  after  maturity.  Held,  in  an  action  by  the  Iiobh'r  against  the 
drawer,  that  presentment  at  maturity  was  still  necessary,  and  the  plaintitfs  were  non- 
gnitcd.     These  cases  would  seem  hardly  to  be  supported  by  reason.     It  will  !)e  seen 


CH.  X.]         RIGHTS,   ETC.    OF   A   PAYEE   BEFORE   ACCEPTANCE.  339 

after  refusal  to  accept  and  notice  given,  even  though  the  drawer 
requests  him  to  do  so,  and  promises  that  the  bill  shall  be  hon- 
ored. (5^) 

With  regard  to  the  necessity  of  presentment  for  acceptance 
where  the  drawee  has  died,  removed,  absconded,  or  become  in 
any  way  incompetent  to  enter  into  a  contract,  most  of  the  cases 
have  been  decided  with  reference  to  presentment  for  payment ; 
but  there  seems  to  be  no  good  reason  why  the  same  principles 
should  not  be  applicable  to  both  classes  of  cases.  (A) 

As  to  the  person  who  is  to  make  the  presentment,  it  should  be, 
in  general,  the  lawful  holder  or  his  agent ;  but  we  have  already 
seen  that  a  written  acceptance  is  binding  without  any  reference 
to  the  party  making  the  request.  If,  however,  the  acceptance  is 
oral,  it  must  be  made  to  one  then  having  an  interest  in  the  bill, 
or  subsequently  acquiring  an  interest  on  the  credit  of  the  words 
so  spoken. (t) 

We  have  already  stated  that  bills  payable  at  a  certain  number 
of  days  after  sight  or  demand  must  be  presented  within  a  reason- 
able time  ;  and  it  now  becomes  necessary  to  see  what  is  meant  by 
this  reasonable  time.  It  does  not  seem  clear  from  the  authorities 
whether  this  question  of  reasonable  time  is  one  for  the  court  or 
the  jury.  Some  of  the  cases  appear  to  hold  that  it  is  a  question 
for  the  jury,  some  decide  that  it  is  a  mixed  question  of  law  and 
fact,  and  others  that  it  is  a  question  of  law  for  the  court. (7)     Our 

subsequently,  that,  where  the  drawer  knew  that  the  drawee  had  no  funds,  the  former  is 
not  entitled  to  notice  of  dishonor,  on  the  ground  that  drawing  the  bill  under  such  circum- 
otances  is  a  fraud.  How  then  can  it  be  said  that  he  is  entitled  to  have  a  useless  pre- 
sentment made,  when  he  has  no  right  to  require  notice  of  it  ?  In  the  latter  case,  it 
does  not  distinctly  appear  that  the  drawees  had  no  funds,  but  it  is  fairly  to  be  inferred 
from  the  case.  Besides,  if  there  was  reasonable  ground  for  the  plaintlif  to  rely  upon 
the  declarations  of  the  drawer,  it  hardly  seems  just  that  the  latter  could  object  to  want 
of  presentment. 

(<7)  Hicklingr.  Hardey,  7  Taunt.  312,  1  J.  B.  Moore,  81. 

(h)  See  Chap.  11.  If  the  drawee  of  a  bill  cannot  be  found  at  the  place  where  the 
bill  states  him  to  reside,  and  it  appears  that  he  never  resided  there,  or  has  absconded, 
the  bill  is  to  be  considered  as  dishonored.     Wolfe  v.  Jewett,  10  La.  383. 

(j)  Supra,  c.  9,  §  1,  p.  286. 

(j)  In  Mailman  v.  D'Eguino,  2  H.  Bl.  565,  Eyre,  C.  J.  said:  •'  The  question,  what 
is  reasonableness  of  time,  must  depend  on  the  particular  circumstances  of  the  case,  and 
it  must  always  be  for  the  jury  to  determine  whether  any  laches  is  imput'^able  to  the 
plaintiff"  Buller,  J.  said  :  "The  question  is,  whether  due  diligence  was  used  by  the 
plaintiffs  in  this  case.  Upon  all  the  fiicts,  the  jury  have  found  that  there  were  no  laches 
in  the  plaintiff  and  there  is  nothing  in  the  state  of  those  facts,  as  they  appear  upon  the 
evidence,  to  warrant  the  court  to  say  that  the  verdict  is  against  law."    In  Fry  v.  Hill,  7 


340  NOTES   AND    BILLS.  [CH.  X. 

own  view,  derived  from  the  authorities  cited  in  the  note,  and 
from  the  reason  of  the  case,  is  this.  Where  the  facts  are  few 
and  simple,  and  the  acts  or  admissions  of  parties  clear  and  un- 
equivocal, the  question  is  one  of  law  for  the  court.  But  where 
the  rights  and  liabilities  of  parties  depend  on  contracts,  and  a 
variety  of  transactions  and  dealings  arising  therefrom,  or  where 
the  facts  are  contradictory  and  complicated,  it  is  a  question  for 
the  jury  to  determine.     It  may,  perhaps,  be  regretted  that  this 


Taunt.  397,  Gibbs,  C.  J.  said :  "  If  we  were  to  grant  a  new  trial,  the  result  would  come 
at  the  last  to  this ;  it  would  be  a  question  for  the  jury  whether  there  has  been  a  de- 
fault to  present  the  bill  within  a  reasonable  time.  That  question  has  already  been  left 
to  the  jury,  and  they  have  found  that  the  bill  was  presented  in  a  reasonable  time. 
We  think,  as  the  matter  stands,  it  is  perfectly  right."  Goupy  v.  Harden,  7  Taunt.  159. 
In  Wallace  v.  Agry,  4  Mason,  336,  Stori/,  J.  said  :  "  What  that  reasonable  time  is,  de- 
pends upon  the  circumstances  of  each  particular  case,  and  no  definite  rule  has  as  yet  been 
laid  down,  or  indeed  can  be  laid  down,  to  govern  all  cases.  The  question  is  a  question 
of  fact  for  the  jury,  and  not  of  law  for  the  abstract  decision  of  the  court.  Such,  as  I 
take  it,  is  the  doctrine  of  the  authorities."  In  Fernandez  v.  Lewis,  1  McCord,  322, 
Gantt,  J.  said :  "  What  is  reasonable  time  depends  upon  the  particular  circumstances 
of  the  case,  and  it  is  for  the  jury  to  determine  whether  any  laches  is  imputable  to  tho 
holder  ....  The  verdict  of  the  jury  was  legally  correct,  and  cannot  now  be  disturbed." 
In  Shute  v.  Robins,  Moody  &  M.  133,  3  Car.  &  P.  80,  Lord  Tenterden,  C.  J.  said: 
"  The  only  question  in  this  case  is,  whether  the  plaintiffs  or  their  servant  used  due 
diligence  in  forwarding  the  bill  in  question.  This  is  a  mixed  question  of  law  and 
fact ;  and,  in  expressing  my  own  opinion,  I  do  not  wish  at  all  to  witlidraw  the  case  from 
the  jury."  In  Mellish  v.  Rawdon,  9  Ring.  416,  2  Moore  &  S.  570,  Tindal,  C.  J.  said  : 
'•  Whether  tlrfrc  has  been,  in  any  particular  case,  reasonable  diligence  used,  or  whether 
unreasonable  delay  has  occurred,  is  a  mixed  question  of  law  and  fact,  to  be  decided  by 
the  jury,  acting  under  the  direction  of  the  judge,  u])on  the  particular  circumstances  of 
each  case.  The  judgment  of  the  Court  of  Common  Pleas  in  Muilman  v.  D'Eguino, 
2  H.  Bl.  56.5,  .seems  to  us  to  lead  directly  to  tiiis  conclusion,  and  to  no  other."  Straker 
V.  Graham.  4  M.  &  W.  721  ;  MuUick  v.  Radakisscn,  9  Moore,  P.  C.  66,  28  ling.  L.  &  Eq. 
86.  In  Prescott  Bank  v.  Caverly,  7  Gray,  217,  Bigelow,  J.  stated  the  rule  as  follows* 
"Ordinarily,  the  question  whether  a  presentment  was  within  a  reasonable  time  is  a 
mixed  question  of  law  and  fact,  to  be  decided  by  the  jury,  under  projjer  instructions 
from  the  court.  And  it  may  vary  very  much,  according  to  the  particular  circumstances 
of  each  case.  If  the  facts  arc  doubtful  or  in  dispute,  it  is  the  clear  duty  of  the  court 
to  submit  them  to  the  jury.  But  wlicn  they  are  clear  and  uncontradicted,  then  it  is  com- 
petent for  the  court  to  determine  whether  the  time  rcciuired  by  law  for  the  presentment 
has  beep  exceeded  or  not." 

In  Aymar  v.  Beers,  7  Cowen,  705,  the  defendant  sought  to  excuse  delay  in  present- 
ing, on  account  of  the  sickness  of  the  payee.  The  court  below  rejected  the  evidence, 
and  ordered  a  nonsuit,  though  the  defendant  insisted  on  his  right  to  go  to  the  jury,  upon 
the  question.  The  court  above  held,  that  although  the  reasonableness  of  time  was  a 
question  of  law  for  the  court,  yet  that  sickness  was  an  excuse,  and  ordered  a  new  trial. 
The  cases  on  negotiable  paper  cited  in  support  of  the  doctrine,  however,  arose  with 
regard  to  the  reasouubleness  of  time  in  giving  notice,  and  not  in  respect  to  present- 
ment for  acceptance.     Sec  Elting  v.  Brinkerhofl",  2  Hall,  459. 


en.  X.]      RidiiTs,  i:tc.  of  a  tayee  before  acceptance.  341 

question  of  reiuoiialilo  time  is  not  made  certain  in  England  and 
in  this  country  by  law,  as  it  is  in  France. (/c)  Many  cases  have 
arisen  upon  this  point,  but  as  each  one  was  decided  on  its  own 
peculiar  circumstances,  they  do  not  go  very  far  towards  estab- 
lishing a  general  rulG.(/) 

One  element  which  lias  an  important  bearing  on  the  subject  of 
the  reasonableness  of  delay,  is  the  fact  that  the  bill  has  been 
circulated.  A  holder  may  put  the  bill  into  circulation  without 
presenting  it  for  acceptance,  and  while  the  bill  contin\ies  in  cir- 
culation, a  considerable  delay,  even  of  a  year  or  more,  may  not 
be  laches;  yet  if  the  holder  were  to  take  the  bill  up  from  circu- 
lation, a  short  delay  would  then  be  laches, (m)  although  this  dues 
not  mean  that  he  must  instantly  upon  coming  into  possession 
of  the  bill  elect  either  to  present  or  circulate  it.(w) 

If  a  bill  payable  abroad  after  sight  be  received  in  business, 
it  is  not  necessary  to  send  it  abroad  by  the  first  opportunity, 
nor  need  any  bill  payable  after  sight  be  sent  directly  to  tlie 
place  on  which  it  is  drawn, (o)   though  a  holder  would  hardly 

(k)  Code  dc  Commerce,  L.  1,  T.  8,  a.  160;  1  Pardes.  434,  435,  2  id.  391.  The 
holder  is  bound  to  allow  the  drawee  one  day  for  every  fifteen  miles  between  the  place 
where  the  bill  is  drawn  and  that  on  which  it  is  drawn,  that  the  drawee  may  receive  ad- 
vice.    1  Pardes.  382. 

(/)  See  the  cases  cited  sttpra,  p.  339,  note^. 

(m)  In  Muilman  v.  D'Egiiino,  2  H.  Bl.  565,  BuUer,  J.  said  :  "But  here  I  must  ob- 
serve, that  I  think  a  rule  may  thus  far  be  laid  down  as  to  laches,  with  regard  to  bills 
payable  at  sight,  or  a  certain  time  after  sight ;  namely,  that  they  ought  to  be  put  into 
circulation.  If  they  are  circulated,  the  parties  are  known  to  the  world,  and  their  credit 
^  looked  to  ;  and  if  a  bill  drawn  at  three  days'  sight  were  kept  out  in  that  way  for  a 
year,  I  cannot  say  there  would  be  laches.  But  if,  instead  of  putting  it  into  circu- 
lation, the  holder  were  to  lock  it  up  for  any  length  of  time,  I  should  say  that  he  was 
guilty  of  laches."     Wallace  v.  Agry,  4  Mason,  336,  5  id.  118. 

(n)  In  Mellish  v.  Rawdon,  9  Bing.  416,  Tindal,  C.  J.,  after  quoting  the  language  of 
Sillier,  J.,  supra,  note  m,  said  :  "  The  meaning,  therefore,  of  the  expression  above  re- 
•  irred  to  is,  and  indeed  the  very  form  of  the  expression  denotes  it,  that  he  must  not  lock 
the  bill  up  for  an  indefinite  time  ;  that  there  must  be  some  limit  to  its  being  kept  from 
circulation  ;  and  what  limit  can  there  be,  except  that  the  time  during  which  it  is  locked 
up  must  be  reasonable  ?  But  what  is  or  is  not  reasonable  for  that  purpose,  a  jury 
must,  with  the  assistance  of  the  judge,  under  all  the  ciivumstances  of  the  particular 
case,  determine." 

(o)  It  was  contended  by  the  defendant  in  Muilman  !■.  D'Eguino,  2  H.  Bl.  565,  that 
the  bills  which  were  drawn  in  London  on  Calcutta  ought  to  have  been  forwarded 
^y  the  first  ship  that  left  after  the  indorsement  of  the  bill  to  the  plaintiffs,  but  the  objec- 
tion was  not  sustained.  In  Wallace  v.  Agry,  4  Mason,  336,  5  id.  118,  the  bill  was 
drawn  in  Havana  on  London.  Story,  J.  said  :  "  It  has  been  said  that  the  plaintiff 
was  bound  to  send  it  (the  bill)  directly  from  Havana  to  England  by  some  regular  con- 
29* 


34i  NOTES   AND    BILLS.  [CH.  X. 

be  justifiod  in  sending  the  bill  to  a  remote  place,  wholly  out 
of  the  course  of  trade. (;>»)  But  a  bill  drawn  in  Havana  on 
London  may  be  forwarded  by  the  way  of  the  United  States ;  (q) 
one  drawn  in  London  on  Lisbon,  by  tlie  way  of  Paris  and  Ge- 
noa ;  (r)  and  one  drawn  in  New  Orleans  on  Liverpool,  by  tlie  way 
of  New  York.  (5)  The  custom  and  usage  of  trade  will  of  course 
have  an  important  bearing  on  the  question  of  delay.  (^)  Also  the 
distance  between  the  place  where  the  bill  is  drawn,  and  the  resi- 
dence of  the  drawee.  The  falling  or  rising  of  the  rate  of  ex- 
change may  likewise  be  considered, (m)  the  holder  having  a  right 


veyance,  and  had  no  right  to  remit  it  to  Boston  for  sale.  I  am  of  a  different  opinion. 
The  party  who  receives  a  negotiable  bill  payable  afcer  sight  has  a  right  to  sell  it  in  the 
market  where  he  resides,  or  to  send  it  to  any  other  place  for  sale.  He  is  not  hound 
personally  to  make  a  remittance  of  it,  or  to  send  it  directly  to  the  country  on  which  it 
is  arawn.  He  is  at  full  liberty  to  put  it  in  circulation,  or  to  send  it  to  any  otiicr 
place  for  sale  or  remittance  ;  and  the  only  limitation  upon  this  right  is,  that  he  shall 
have  it  presented  within  a  reasonable  time,  be  the  conveyance  direct  or  indirect. 
To  be  sure,  the  usage  of  trade  is  to  be  consulted  on  this,  as  on  other  occasions.  The 
holder  of  such  a  bill  is  not  at  liberty  to  send  it  to  very  remote  places,  wholly  out  of 
the  course  of  trade,  if  there  be  unreasonable  delay  thereby  in  the  presentment  for  ac- 
ceptance ;  and  thus  to  fix  the  drawer  with  an  indefinite  responsibility.  But,  on  the 
other  hand,  the  transmission  in  a  direct  trade  is  not  necessary.  No  one  can  doubt  that, 
by  the  course  of  trade,  many  bills  of  exchange  drawn  in  Havana  on  England  are  sent 
to  the  United  States  for  remittance  or  sale.  The  very  testimony  in  this  case  estab- 
lishes this  fiict.  It  would  be  a  most  inconvenient  rule  to  hold  that  such  a  negotiation 
of  bills  was  at  the  sole  peril  of  the  holder.  I  know  of  no  rule  of  law  reaching  to  such 
extent.  In  my  judgment,  the  remittance  of  tlie  bill  to  Boston  for  sale  was  not  a  dis- 
charge of  the  defendants." 

(p)  Slon/,  J.,  Wallace  v.  Agry,  supra,  note  0. 

(q)  Waihice  V.  Agry,  4  Mason,  336,  5  id.  118. 

(/■)  Goupy  V.  Harden,  7  Taunt.  1.59.. 

(s)   Bolton  V.  Harrod,  9  Mart.  La.  326. 

(t)  Wallace  v.  Agry,  4  Mason,  336.  In  this  case,  reported  h  Mason,  118,  Story,  J 
said  :  "  The  evidence  in  the  ca-sc  of  the  usage  of  mcrciiants,  if  not  good  evidence  of 
the  law,  was  evidence  as  to  their  understanding  of  what  was  reasonable  time,  and  in 
that  view  proper  for  the  consideration  of  the  jiuT  ;  that  with  reference  to  such  usage 
he  would  put  it  to  the  jury  to  say  whether  the  present  bill  was  not,  in  ])oint  of  fact,  put 
into  negotiation,  or  transmitted  for  presentment,  within  a  reasonable  time."  Shutc  v. 
Robins.  Moody  &  M.  133,  3  Car.  &  P.  80 ;  Prescott  Bank  v.  Cavcrly,  7  Gray,  217. 

(«)  The  falling  of  the  rate  of  exchange  was  an  excuse  offered  for  delay  in  Wallace 
V.  Agry,  4  Mason,  336,  5  id.  118;  Mcllisli  v.  Kawdon,  9  Bing  416,  2  Moore  &  S.  .570. 
In  this  last  case  TindciJ,  C.J.  said  :  "  So  long  as  the  exciiange  remains  steady,  or  at  all 
events,  if  it  rises  after  he  (the  holder)  has  taken  the  bill,  his  interest  does  not  materially 
clasli  with  that  of  the  drawer;  and  on  sueii  a  case  the  jury  would  |)robal)ly  think,  with 
reference  to  the  interest  of  both,  that  the  reasonal)le  lime  for  sending  forward  tlie  bill 
was  satisHcd  by  the  allowance  of  a  shorter  and  less  extended  period  of  time  than  if  the 
interest  of  the  holder  and  the  drawer  were  in  conflict  and  competition  witii  each  othc-. 


CH.  X.]        RIGHTS,   ETC.    OF   A   PAYEE    BEFORE   ACCEPTANCE.  34B 

to  delay  wlicre  there  is  a  reasonable  ground  for  supposing  that 
the  exchange  may  become  more  l)encricial  to  him.(f) 

The  means  and  facility  of  communication  between  the  places 
should  be  considered,  where  the  party  who  presents  the  bill  has 
had  it  in  his  possession  for  some  length  of  time  ;  (iv)  so  also  tlie 
fact  that  war  exists  between  the  two  countries. (x)  A  delay  oth- 
erwise unreasonable  would  be  excused  l)y  inevitable  accident,  or 
invincible  obstruction,  as  by  severe  illness. (//)  Whether  the  fact 
that  the  bill  has  passed  through  several  hands  may  not  have  some 
effect  in  gradually  shortening  the  reasonable  time  to  which  each 
successive  holder  is  entitled,  docs  not  appear  to  have  been  con- 
sidered ;  but  it  has  been  held  that,  in  determining  the  point  of 
reasonable  time,  the  jury  are  to  look  at  the  interests  of  the 
drawer,  as  well  as  those  of  the  holder,(2)  and  it  would  seem  that 

But  if,  iis  iiappcncd  in  the  present  case,  the  exchange  falls  immediately  after  the  sale  of 
the  hill,  the  jury  might  then  think  a  more  extended  period  might  fairly  and  reasonahly 
be  allowed  the  iiolder,  in  ordei^to  enable  him,  bona  Jide,  to  endeavor  to  make  a  fair 
profit,  or,  at  all  events,  to  endeavor  to  secure  himself  from  actual  loss." 

(v)  Mullick  V.  Eadakisscn,  9  Moore,  P.  C.  66,  28  Eng.  L.  &  Eq.  86,  limits  the 
right  of  the  holder  to  wait  for  a  more  favorable  rate  of  exchange  to  cases  where  he  has 
reasonable  ground  to  expect  it  soon.  The  bill  in  this  case  was  drawn  in  Calcutta  on 
Hong  Kong.  Parke,  B.  said  :  The  court  "  thought  that  the  evidence  proved  that,  fot 
the  whole  of  the  time,  a  period  of  more  than  five  months,  bills  on  China  were  alto- 
gether unsalable  in  Calcutta ;  that  such  was  the  permanent  and  regular  state  of  the 
market ;  and  that  although,  if  there  was  a  reasonable  prospect  of  the  state  of  things 
being  better  in  a  short  time,  the  holder  would  have  had  a  right,  with  a  view  to  his  own 
interests,  to  keep  the  bill  for  some  time,  he  had  no  such  right  when  there  was  no  hope 
of  the  amendment  of  that  state  of  things  ;  and  we  are  of  opinion  that  the  evidence 
fully  justified  this  conclusion  from  it,  and  that  the  court,  deciding  on  facts,  as  a  jury, 
were  perfectly  rigiit." 

{lo)  See  Straker  v.  Graham,  4  M.  &  W.  721  ;  Sluite  v.  Robins,  Moody  &  M.  1.33, 
3  Car.  &  P.  80  ;  Dumont  v.  Pope,  7  Blackf.  367. 

(.r)  U.  S.  V.  Barker,  1  Paine,  C.  C.  156,  163,  where  Livingston,  J.  said  :  "  When  it  is 
considered  that  the  bill  was  drawn  in  time  of  war,  which  renders  any  intercourse  pre- 
carious and  not  of  very  frequent  occurrence,  it  would  be  too  much  for  any  court  to 
say  that  the  delay  here  complained  of  shall  destroy  the  right  of  the  plaintiffs  to  re- 
cover on  this  bill." 

(y)  In  Ayniar  v.  Beers,  7  Cowen,  705,  the  plaintiff  offered  evidence  of  sickness  to 
excuse  delay.  The  court  below  rejected  it  as  not  sufficient,  and  nonsuited  the  plaintiff. 
The  court  above  set  aside  the  nonsuit  on  that  account. 

(z)  In  Mellish  v.  llawdon,  9  Bing.  416,  Tindal,  C.  J.  said:  "The  point  which 
arises  in  this  case  is  whether,  in  determining  the  question  of  reasonable  time,  the 
jury  are  to  look  exclusively  to  the  interests  of  the  drawer,  or  may  take  into  account 
those  of  the  holder  also.  And  we  are  of  opinion,  there  is  no  rule  of  law,  and  no 
custom  was  proved  at  the  trial,  which  should  prevent  the  jury  from  looking,  for 
that  purpose,  to  the  interests  of  both."  Mullick  v.  Radakissen,  9  Moore,  P.  C  46, 
26  Eng.  L.  &  Eq  86. 


344  NOTES   AND    BILLS.  [CH.  X. 

there  should  be  some  limit  to  the  question,  independently  of  the 
Statute  of  Limitations.  The  continued  solvency  of  the  drawee, 
and  the  want  of  proof  of  actual  loss  by  laches,  have  been  held  to 
be  no  answer  to  the  objection  of  delay  in  presentment. (a)  The 
law  is  different  with  respect  to  bank-checks,  which  subject  is  con- 
sidered subsequently.  (6)  As  may  be  supposed  from  the  almost 
infinitely  varying  change  of  circumstances  in  each  case,  tlie  ac- 
tual lapse  of  time  in  the  cases  varies   considerably. (c)      And, 

(a)  UuWuk  V  Radakisscn,  9  Moore,  P.  C.  46,  68,  28  Eiig.  L.  &  Eq  86,  where  Parle, 
B.  said  :  "  It  remains  to  consider  only  one  point,  which  was  insisted  upon  in  the 
court  below,  and  also  argued  at  the  bar  before  us ;  namely,  that,  as  the  drawers  re- 
mained perfectly  solvent  from  the  date  of  the  bill  to  the  present  time,  the  rule  as  to 
presenting  in  a  reasonable  time  did  not  apply,  and  that  there  was  no  laches  which 
would  constitute  a  defence  by  the  drawers  unless  they  had  incurred  a  loss  by  that 
laches.  The  court  below  decided  that  the  solvency  of  the  drawers,  and  the  want  of 
actual  loss  by  laches,  constituted  no  answer  to  the  objection  of  laches.  We  think  they 
were  right.  There  is  no  trace  of  such  a  qualification  in  the  elaborate  judgment  of 
Tinclal,  C.  J.  in  Mellish  v.  Rawdon,  (1)  Bing.  416,)  in'which  the  circumstances  which 
constitute  a  reasonable  delay  are  fully  discussed.  No  mention  is  made  of  the  insol- 
vency of  the  drawer  subsequent  to  the  drawing,  although  it  did  occur  in  that  case,  or 
some  loss  by  the  drawer  being  an  essential  condition  to  the  application  of  the  rule  laid 
down;  and  in  Muilman  v.  D'Eguino,  2  H.  Bl.  56.5,  it  was  clear  that  the  failure  of  the 
drawer  caused  no  damage  to  the  plaintiff,  being  before  the  time  that  the  bill  could  pos- 
sibly have  been  presented  in  India ;  yet  that  circumstance  was  not  mentioned  as  dis- 
pensing with  the  obligation  to  present  in  a  reasonable  time;  and  with  respect  to  all 
bills  of  exchange  payable  after  date,  it  is  fully  settled  that  neither  the  want  of  jjresent- 
ment  at  the  time  the  bill  is  due,  nor  the  want  of  due  notice,  arc  excused  because  the 
drawer  has  continued  solvent,  or  the  holder  incurred  no  loss  by  non-presentment  or 
want  of  regular  notice.  This  point  was  fully  considered  in  the  case  of  Carter  v. 
Flower,  16  M  &  \V.  743,  and  we  believe  admits  of  no  doubt;  and  we  agree  with  the 
court  below,  that  the  continued  solvency  of  the  drawers  does  not  prevent  the  applica- 
tion of  the  rule  that  the  bill  must  be  presented  in  a  reasonable  time,  with  reference  to 
the  interest  of  the  drawer  to  put  the  bill  into  circulation,  or  the  interest  of  the  drawee 
to  have  the  bill  speedily  presented." 

(b)  Lifni,  chapter  on  Checks. 

(c)  In  Muilman  t'.  D'Eguino,  2  H.  Bl  .56.5,  liills  drawn  in  London  on  Calcutta,  at 
ninety  days,, were  circulated  in  England  for  seventy-eight  days,  then  forwarded  to  Cal- 
cutta. The  ship  in  which  they  were  carried  arrived  in  the  Ilooghly  River,  Oct,  3,  seven 
months  after  the  date  of  the  bills.  On  Oct.  .5,  the  holder  notified  the  drawee,  who  was 
absent  from  Calcutta,  and  the  latter  refused  to  accept,  by  letter,  Oct.  17.  The  bills 
were  protested,  Oct.  20.  Held,  no  laches.  In  Goupy  v.  Harden,  7  Taunt.  159,  the 
bill  was  drawn  in  Loudon  on  Lisbon  at  thirty  days,  circulated  through  Paris  and  Ge- 
noa, and  ))rcsenled,  after  a  delay  of  tln'ce  months  and  ten  days.  Held,  no  laches,  in  an 
action  liy  indorsees  against  their  indorsers.  In  Fry  v.  Hill,  7  Taunt.  .'597,  a  bill  drawn 
in  Windsor  on  London,  at  one  monfli,  was  presented  after  a  delay  of  fom-  days,  Sun- 
day intervening.  Held,  no  laches.  In  Siiute  r.  Robins,  Moody  &  M,  133,  3  (^ar.  &  P. 
80,  u  bill  drawn  in  Plymouth  on  London,  at  twenty  days'  sight,  was  not  preseoied  till 
nine  days.    Held,  in  an  action  by  indorsees  against  indorsers,  that  there  were  nc  l.ichea 


OH.  X.]         RIGHTS,   ETC.    OF   A   PAYEE   BEFORE   ACCEPTANCE.  345 

whatever  the  reasonable  time  may  be,  the  liolder  who  exceeds 
it  discharges  all  prior  parties,  because  he  takes  upon  himself 
the  risk  both  ot"  the  drawee's  non-acceptance  and  of  his  insol- 
vency. 

It  has  been  held  that  an  agent  is  bound  to  present  immediately, 

In  Mullisli  I'.  Rawdoii,  a  bill  drawn  in  England  on  Rio  de  Janeiro,  at  sixty  days,  was 
kept  hy  the  holder  nearly  five  months,  the  rate  of  exchange  having  fallen.  Held,  no 
laches,  in  an  action  by  the  holder  against  the  drawer.  In  Straker  v.  Graham,  4  M.  & 
W.  721,  a  bill  drawn  in  Carbonear,  Newfoundland,  on  Poole,  P^ngland,  at  ninety  days, 
was  not  presented  till  three  months  after  date.  Carbonear  is  twenty  miles  from  St. 
John's,  with  a  daily  means  of  communication  between  the  places.  The  mails  were  sent 
from  St.  John's  to  England  three  times  a  week,  and  the  average  length  of  the  voyage 
being  eighteen  days.  Held,  that  the  bill  was  not  presented  within  a  reasonable  time, 
no  excuse  being  shown  for  the  delay.  In  Mullick  v.  Riidakissen,  9  Moore,  P.  C.  46, 
28  Eng  L.  &  Eq.  86,  A  drew  a  bill  in  Calcutta  on  B  of  Hong  Kong,  at  sixty  days' 
sight,  and  indorsed  it  to  C.  C  kept  the  bill  five  months,  and  indorsed  it  to  D.  D 
kept  the  bill  from  July  2.5111  till  Sept.  7th,  and  then  forwarded  it  to  Hong  Kong.  It 
was  presented  for  acceptance,  October  24,  eight  months  after  date,  and  acceptance  was 
rcfuscd.  The  ordinary  length  of  the  voyage  between  the  two  places  is  one  month. 
The  bill  was  protested,  November  28.  D  sued  A,  the  drawer,  who  defended  on  the 
ground  of  unreasonable  delay.  Held,  that  he  was  not  entitled  to  recover.  This  case 
is  tiicrcfore  an  authority  to  show  that  the  laches  of  a  prior  holder  in  circulating  a 
bill  is  a  good  defence  for  the  drawer  as  against  a  subsequent  holder. 

In  Wallace  v.  Agry,  4  Mason,  336,  the  defendant's  agent  drew  a  bill  at  sixty  days  in 
Havana  on  London.  The  plaintiff  sent  the  bill  to  his  agent  in  Boston,  who  ke[)t  it, 
on  account  of  the  low  rate  of  exchange,  for  eighty-four  days,  and  then  sent  it  to 
London,  where  it  was  presented  four  and  a  half  months  after  date.  On  the  first  trial, 
the  jury  disagreed  on  the  facts,  but  on  the  second,  5  Mason,  118,  found  for  the  plaintiff". 
In  Kobinson  v.  Ames,  20  Johns.  146,  a  bill  at  sixty  days  was  drawn  in  Augusta,  Ga., 
on  New  York,  and  circulated,  and  presented  in  two  and  a  half  months  from  date. 
Held,  in  an  action  by  an  indorsee  against  the  drawers,  no  laches.  In  Gowan  v.  Jack- 
son, 20  Johns.  176,  the  bill  was  drawn  in  Antigua  on  London,  at  ninety  days,  and 
circulated.  A  delay  of  six  months  had  occurred.  A  packet  usually  left  Antigua 
for  London  once  a  month.  Held,  in  an  action  by  the  indorsees  against  the  drawers, 
no  laches 

In  Aymar  v.  Beers,  7  Cowen,  705,  a  bill  drawn  in  New  York  on  Richmond,  Va.,  at 
three  days,  was  presented  after  a  lapse  of  about  a  month.  Woodworih,  J.  was  in- 
clined to  think  that  there  might  be  laches,  but  the  case  was  decided  on  the  point 
that  sickness  was  a  good  excuse  for  the  delay,  in  an  action  by  indorsees  against 
the  drawer.  In  Prescott  Bank  v.  Caverly,  7  Gray,  217,  presentment  in  Boston  during 
banking  hours  on  Wednesday  of  a  bill  at  sight,  indorsed  to  the  holder  in  Lowell  after 
banking  hours  the  previous  Saturday,  and  forwarded  by  the  holder  to  Boston  on 
Tuesday,  was  held  sufficient  to  charge  an  indorser.  In  Fernandez  v  Lewis,  1  McCord, 
322,  a  bill  drawn  in  Charleston  on  New  York,  at  three  days,  was  not  presented  for  two 
and  a  half  months  The  holder  lived  several  days  in  the  same  house  with  the  drawee. 
Held,  that  the  drawer  was  discharged  by  the  delay.  In  Dumont  v.  Pope,  7  Blackf. 
367,  one  month's  delay  was  held  too  much,  the  distance  between  the  place  where  the 
jill  was  drawn  and  that  on  which  it  was  drawn  being  only  eighteen  miles,  with  a 
communication  three  times   a  week    between  the  places.     In  Bolton  v    Ilarrod,    9 


846  NOTES   AND   BILLS.  [CH.  X. 

or  US  soon  as  he  can  by  ordinary  means,  a  bill  which  is  forwarded 
to  him  to  obtain  acceptance ;  and  that,  if  he  fails  so  to  do,  he  is 
liable  to  his  principal  for  any  loss  that  may  ensne  in  consequence 
of  tlie  delay  m  presenting,  (c?) 

It  will  be  seen  hereafter,  that  no  presentment  for  payment  need 
be  made  on  any  day  set  apart  either  as  sacred,  or  otherwise,  by 
law  or  usage ;  and  that  it  must  be  made  within  reasonable  hours, 
which  may  vary  with  the  place  ;  thus,  if  at  a  bank,  then  during 
banking  hours ;  if  at  a  place  of  business,  then  during  business 

Mart.  La.  326,  a  bill  drawn  in  New  York  on  Liverpool,  at  thirty  days,  was  sent  by 
the  way  of  New  York.  A  delay  of  two  and  a  half  months  was  held  no  laches.  la 
U.  S.  y.  Barker,  1  Paine,  C.  C.  156,  a  bill  drawn  in  the  United  States  on  Liverpool 
was  presented  three  months  from  the  date.  AVar  existed  between  the  United  States 
and  England.     Held  no  laches. 

(d)  In  Allen  v.  Suydam,  17  Wend.  368,  the  principal  received  a  draft  dated  Jnly 
21st,  payable  to  his  order,  two  months  after  date,  on  August  16th,  and  he  placed  it 
in  the  hands  of  an  agent  for  collection  the  same  day.  Tiie  agent  forwarded  the 
draft  Sept.  2d,  and  on  Sept.  7th  it  was  presented  to  the  drawees,  who  refused  to  accept, 
saying  that  they  never  accepted  for  the  drawer  without  instructions,  but  expected  to 
hear  from  him  in  a  short  time.  On  Sept.  10th,  the  draft  was  again  presented,  and  the 
drawees  refused  to  accept,  because  the  drawer  had  instructed  them  to  do  so.  It 
appeared  that,  subsequent  to  the  drawing  of  this  bill,  other  bills  of  the  same  drawer  had 
been  accepted  and  paid  by  the  same  drawees  ;  that  at  the  date  of  the  bill  the  drawees 
had  funds  of  the  drawer  in  their  hands,  but  none  at  the  time  of  presentment,  and  that 
the  principal  gave  the  agent  no  special  instructions  with  regard  to  ])rcsentment.  A 
verdict  was  directed  for  the  plaintiffs,  and  sustained.  The  justice  of  this  case,  at  least, 
is  very  doubtful.  It  will  be  seen  that  the  bill,  being  payable  at  a  certain  time  after  date, 
need  not  have  been  presented  for  acceptance  by  the  holder  at  all,  but  the  agent  pre- 
sented it  nine  days  before  maturity,  after  having  kept  it  in  his  hands  seventeen  days.  Ho 
had  no  instructions  from  the  principal  to  present  it  immediately,  and  it  is  very  difficult 
to  see  wliy  the  agent  was  required  to  do  more  than  the  principal  was  bound  to  do.  It  also 
appeared  in  the  case,  that  the  lateness  of  presentment  had  nothing  whatever  to  do  with 
the  refusal,  and  that,  if  the  agent  had  presented  the  very  day  he  received  it,  it  would  not 
have  been  accepted,  nor  was  there  any  time  between  tiie  date  of  tiie  bill  and  its  maturity 
when  the  drawees  would  have  accei)ted.  Why,  then,  must  an  agent  be  required  to  make 
an  utterly  useless  presentment,  when  any  holder,  in  the  exercise  of  reasonable  diligence, 
would  not  be  required  to  ])resent,  even  if  there  was  a  fair  prosjjcct  of  acceptance  1  Tho 
case  was  affirmed,  however,  20  Wend.  321,  on  this  ])oint.  The  reasons  given  are  not 
satisfactory.  The  opinions  of  various  writers  arc  cited,  and  tho  reasons,  so  far  as  they 
can  be  collected,  are,  that  the  holder  has  an  interest  in  having  the  bill  accepted  as  soon 
as  possible,  and  therefore  his  agent  is  bound  to  present  immediately.  But  it  is  no 
negligence  for  tiie  principal  not  to  present,  and  it  can  hardly  be  said  to  follow  that  this 
would  be  negligence  in  the  agent.  And  if  it  is  so  much  for  the  interest  of  the  principal 
to  obtain  acceptance,  is  he  not  guilty  of  negligence  in  not  giving  the  agent  S])ecii\l  in- 
8tru(;lioiis  to  do  so,  which  the  agent  woubl  be  bound  to  follow.  It  is  said,  "  that,  even 
where  the  [irincipal  is  habitually  negligent  in  attending  to  his  own  interests,  it  form?  no 
excuse  for  similar  negligence  on  the  part  of  his  agent."  This  reason  cannot  ajjplyherc, 
for  the  facts  do  not  .show  negligence  at  all.  Wo  supijosc  the  real  reason  for  the  decision 


CH.  X.]         RIGHTS,   ETC.    OF   A    PAYEE   BEFORE   ACCEPTANCE.  347 

hours,  or  when  some  one  is  present  who  is  authorized  to  accept 
or  refuse ;  if  at  a  dwcllhig-house,  then  while  the  family  are-  up, 
and  not  in  the  hours  when  they  have  retired. (e)  We  are  not 
aware  that  there  are  more  than  a  very  few  decisions  on  these 
points,  with  respect  to  presentment  for  acceptance ;  (/)  but  it  is 
conceived  that  the  same  principles  arc  applicable  to  this  and  to 
presentment  for  demand.  It  has  already  been  remarked,  that 
the  holder  should  have  the  bill  with  him  when  he  asks  for  accept- 
ance.    If  he  does  not  produce  it,  and  the  drawee  is  willing  to 

was  the  authority  of  Bank  of  Scotland  v.  Hamilton,  1  Bell,  Comm.  320,  and  Van  "Wart 
V.  Woolley,  5  Dow.  &  R.  374.  In  Bank  of  Scotland  v.  Hamilton,  1  Bell,  Comm. 
320,  note  2,  4th  ed.,  the  plaintiff  sent  a  bill  to  his  agent  to  collect.  It  was  proved  that  it 
was  not  customary  to  present  such  bills  for  acceptance,  but  only  for  payment.  The 
agent  did  not  present  it  till  maturity.  Between  the  day  of  drawing  and  maturity  the 
drawee  failed.  It  did  not  appear  that  the  bill  would  have  been  accepted  if  it  had  been 
presented  immediately.  It  was  held  that  the  defendant  was  bound.  This  case  cannot 
be  regarded  as  an  authority.  It  was  decided  in  the  Couit  of  Session  in  Scotland,  and 
the  bare  facts  are  mentioned  in  the  note  to  Bell's  Commentaries,  without  any  reasons. 
In  Van  Wart  v.  Woolley,  3  B.  &  C.  439,  5  Dow.  &  R.  374,  the  agent  neglected  to  give 
his  principal  notice  of  the  non-acceptance  of  the  bill.  It  appeared  that  the  drawee  had 
no  funds  of  the  drawer,  and  consequently  the  latter  was  not  entitled  to  notice  ;  that  the 
princij)al  had  received  the  bill  from  a  party  who  did  not  indorse  it,  and  that  this  party 
was  liable  without  notice.  The  suit  was  brought  by  the  principal  against  the  agent.  At 
the  time  of  the  suit  it  was  not  certain  that  the  plaintiff  had  not  lost  his  remedy  against 
the  party  from  whom  he  received  it,  on  account  of  want  of  notice.  All  that  is  said  by 
the  court,  Abbott,  C.  J.,  with  regard  to  the  liability  of  the  agent  is  :  "  Upon  this  state  of 
facts  it  is  evident  that  the  defendants  have  been  guilty  of  a  neglect  of  the  duty  which 
they  owed  to  the  plaintiff,  their  employer,  and  from  whom  they  received  a  pecuniary  re- 
ward for  tlieir  services.  The  plaintiff  is  therefore  entitled  to  maintain  his  action  against 
them,  to  the  extent  of  any  damage  he  may  have  sustained  by  their  neglect."  This,  it 
would  seem,  is  assuming  the  very  fact  in  dispute,  which  is,  that  the  agent  was  guilty 
of  neglect  in  not  giving  the  principal  notice,  when  notice  would  have  availed  him 
nothing,  and  when  the  principal,  if  he  had  himself  presented,  could  not  have  been 
required  to  have  sent  notice  to  any  party.  No  authority  is  cited,  nor  is  any  reason 
given ;  and  the  doctrine  is  laid  down  that  an  agent  is  bound  to  use  greater  diligence 
in  presenting  a  bill  for  acceptance,  than  if  he  himself  were  the  owner  and  holder  of  the 
bill.  The  hardship  of  these  eases  is  mitigated,  however,  by  the  amount  of  damages 
which  the  principal  is  allowed  to  recover.  In  Allen  v.  Suydam,  17  Wend.  368,  the 
judge  at  Nisi  Prius  instructed  the  jury,  on  the  facts  of  the  case,  to  i-eturn  a  verdict 
for  the  whole  amount  of  the  bill.  This  was  afHrmed  in  the  Supreme  Court,  but 
was  reversed  in  the  Court  of  Errors,  20  Wend.  321,  where  it  was  held  that,  although 
the  measure  of  damages  is,  prima  facie,  the  amount  of  the  bill,  yet  the  defendant 
may  show  circumstances  in  mitigation  thereof.  Senator  Veiylanck  dissenting.  In  a 
subsequent  trial  of  Van  Wart  v.  Woolley,  Moody  &  M.  520,  the  principal,  having 
recovered  the  full  amount  of  the  bill  from  the  party  from  whom  he  had  received  it, 
was  allowed  to  recover  nominal  damages  only. 

(e)  Infra,  chap.  11. 

(/)  Nelson  v.  Fotterall,  7  Leigh,  179,  is  the  only  one  which  wc  have  met  with. 


34S  NOTES   AND   BILLS.  [CH.  X. 

accept  in  the  usual  way,  by  writing  his  name  on  the  face,  but 
declines  accepting  otherwise,  or  without  seeing  the  bill,  he  can- 
not be  charged  with  tlie  penalties  of  non-acceptance ;  but  if  the 
drawee  makes  no  such  objection,  and  does  or  says  what  is  the 
equivalent  of  acceptance,  he  cannot  afterwards  refuse  to  be  held 
on  the  ground  that  he  did  not  see  the  bill.(o") 

A  drawee  may  demand  a  delay  of  twenty-four  hours,  during 
which  he  may  inspect  his  accounts  with  the  drawer,  and  deter- 
mine whether  to  accept  the  bill  or  refuse  acceptance,  and  during 
this  time  the  bill  may  be  left  with  him. (A)  As  soon,  however, 
as  he  accepts  or  refuses,  although  within  the  time,  the  holder 
should  withdraw  the  bill.  If  the  drawee  delays  acceptance  more 
than  twenty-four  hours,  the  liolder  may  treat  this  as  a  refusal  to 
accept,  and  must  indeed  do  so  to  liold  the  other  parties. (z)  It 
has  been  held,  where  the  holder  by  his  negligence  or  fault  ena- 
bles a  third  party  to  get  possession  of  a  bill  which  he  had  left 
with  the  drawee  for  acceptance,  and  which  had  subsequently 
been  accepted,  that  the  drawee  is  not  liable  in  trover  for  the  bill 
to  the  holder.  (^■) 

{(])  Supra,  chap.  9.  In  Fall  River  Union  Bank  i;.  Willard,  5  Met.  216,  it  was  held 
that,  where  the  liolder  merely  informs  the  drawee  that  he  has  the  bill,  and  the  latter  tells 
him  that  it  will  not  be  accepted  nor  paid,  the  indorser  is  not  thereby  discharged,  if  no 
notice  is  given  of  the  drawee's  declaration.  HtMiard,  J.  said  :  "  The  term  presentment 
imports,  not  a  mere  notice  of  the  existence  of  a  draft  which  the  party  has  in  his  posses- 
sion, but  the  exhibiting  of  it  to  the  person  on  whom  it  is  drawn,  that  lie  may  see  the 
same  and  examine  liis  accounts  or  correspondence,  and  judge  what  he  shall  do,  — 
whether  he  shall  accept  the  draft  or  not.  Here  there  appears  to  have  been  nothing  more 
than  a  casual  meeting  of  the  parties,  and  the  conversation  on  the  subject  of  the  draft 
ensued."  In  Carmichael  v.  Bank  of  Pa.,  4  How.  Miss.  567,  S/iarlcei/,  C.  J.  said  :  "  Any- 
thing which  amounts  to  a  notification  of  the  holding  of  the  bill,  with  a  request  to  accept, 
accompanied  by  the  bill,  will  amount  to  a  presentment.  No  formal  presentment  is  ne- 
cessary, or  rather  there  is  no  form  for  a  presentment.  The  bill  explains  itself,  and  tiie 
object  is  understood  in  the  mercantile  community,  when  it  is  shown  and  an  answer  re- 
quired." 

(/()  Ingram  i-.  Forster,  2  J.  P.  Smith,  242.  In  Bellasis  v.  Hester,  1  Ld.  Kaym.  280, 
l^rebi/,  C.  J.  said  :  "  The  party  may  have  tiic  whole  day  to  view  the  bill,  and  that  is 
allowed  him  by  the  law."  Sec  Hubbard,  J.,  Fall  River  Union  Bank  i;.  Willard,  supra, 
note  rj. 

{{)  Sec  Ingram  v.  Forster,  2  J.  P.  Smith,  242. 

(j)  Morrison  v.  Buchanan,  6  Car.  &  P.  18.  In  this  case  the  plaintiffs'  clerk  left  the 
bill  with  the  drawee  for  acceptance,  and,  subsequently  calling  for  it,  found  that  it  had 
been  accepted  and  delivered  to  anotlicr  person.  The  plaintiffs  sued  the  drawee  for  the 
bill.  In  (lefeiu-e,  it  was  proved  by  the  drawee  that  it  was  his  custom  to  deliver  accepted 
bills  to  the  party  ealliiig  for  and  accurately  describing  them  ;  that  the  bill  in  Kuit  had 
a  private  murk  upon  it,  and  was  delivered  to  a.  person  who,  on  being  asknJ,  gave  the 


OH.  X.]         RIGHTS,    ETC.    OF   A   PAYEE   BE/ORE   ACCEPTANCE.  349 

The  bill  should  be  presented  for  acceptance  either  to  the  drawee 
in  person,  or  to  some  one  authorized  by  him  to  receive  and  ac- 
cept. (A:)  As  the  liolder  must  prove  presentment  in  case  he  founds 
any  right  or  claim  on  non-acceptance,  the  burden  lies  on  him,  if 
he  presents  it  to  an  agent  of  the  drawee,  to  prove  that  the  agent 
was  authorized  to  accept.  But  this  proof  may  undoubtedly,  as 
in  other  cases  of  agency,  be  circumstantial  or  indirect ;  as,  for 
example,  that  he  was  the  clerk  of  the  drawee,  known  to  be  ac- 
customed to  do  this  kind  of  business  for  tlie  drawee. 

We  have  already  seen,  that  an  acceptance  by  one  of  two  or  more 
partners  binds  the  firm.(/)  Therefore,  if  a  bill  is  drawn  on  part- 
ners, it  may  be  presented  to  one  alone.  If  it  is  drawn  on  two  or 
more  who  are  not  partners,  it  should  be  presented  to  all ;  but  ii 
presented  to  a  part,  or  if  presented  to  all  and  refused  by  a  part, 
the  acceptance  will  bind  such  as  make  it. 

With  regard  to  the  place  where  presentment  should  be  made, 
we  refer  to  tlie  chapter  on  Presentment  for  Demand,  where  tho 


right  mark,  amount,  &c.  Two  days  had  elapsed  between  the  time  when  the  bill  was 
left  and  the  time  when  it  was  called  for.  Littledale,  J.,  in  summing  up,  said  to  tho 
jury :  "  The  questions  for  you  will  be  :  first,  whether  there  was  any  negligence  on  the 
part  of  the  plaintiffs  in  their  conduct  with  respect  to  the  bill ;  and,  secondly,  whether 
tliere  was  negligence  on  the  part  of  the  defendant.  If  you  are  of  opinion  that  there 
was  negligence  on  the  part  of  the  plaintiffs,  then  they  will  not  be  entitled  to  recover; 
but  if  the  negligence  was  on  the  part  of  the  defendant,  then  the  plaintiffs  will  be  entitled 
to  the  verdict.  If  there  wa.s  not  any  negligence  on  the  part  of  either  plaintiffs  or  de- 
fendant, then  the  matter  may  be  reserved  for  further  consideration ;  as  it  is  admitted 
to  be  a  doubtful  point  of  law.     As  to  the  first  point,  you  will  consider  whether  the 

plaintift's'  witnesses  were  the  cause  of  the  finding  out  of  the  private  mark If 

he  (the  plaintiffs'  clerk),  by  his  improper  act,  enabled  a  person  to  ascertain  tlie  private 
mark,  and  thereby  to  procure  the  bill  to  be  delivered  out  according  to  the  usual  course 
of  business,  then  it  will  be  for  you  to  say  whether  you  do  or  do  not  consider  that  as  negli- 
gence. The  question  as  to  the  defendant  is.  Has  he  been  guilty  of  that  kind  of  negli- 
gence which  amounts  to  a  conversion  of  the  bill  f  "  The  jury  found  negligence  in  the 
plaintiffs'  clerk,  and  that  the  defendant  had  used  due  caution.    Verdict  for  the  defendant. 

(/.)  Cheek  v.  Roper,  5  Esp.  17.5.  This  was  a  suit  against  a  drawer.  To  prove  pre- 
sentment, it  was  shown  that  the  bill  was  sent  by  the  witness,  who  carried  it  to  a  place 
pointed  out  to  him  as  the  drawee's  house,  and  offered  it  to  some  one  in  an  adjoining 
tan-yard,  who  refused  to  accept.  The  witness  could  not  swear  that  the  person  to  whom 
he  offered  the  bill  was  the  drawee,  or  represented  himself  as  such.  Lord  Ellenborough 
said,  that  the  allegation  of  presentment  for  acceptance  to  the  drawee  "  was  a  material 
one,  as  the  drawer  could  only  become  liable  on  tlie  acceptor's  default,  which  default 
must  be  proved.  That  the  evidence  here  offered  proved  no  demand  on  the  drawee, 
and  was  therefore  insufficient,  so  that  the  plaintiff  could  not  recover  on  the  bill.  Some 
evidence  must  be  given  of  an  application  to  the  party  first  liable." 

(/)    Sapra,  p.  135. 

vo  -  I.  30 


360  NOTES   AXD   BILLS.  [CH.  X. 

subject  is  treated  of  at  length.  "We  may  here,  however,  state,  that 
if  a  bill  be  presented  at  the  proper  place,  whether  this  be  desig- 
nated on  the  bill,  or  otherwise  determined,  and  no  one  appears 
to  accept  it,  it  should  be  duly  protested  for  non-acceptance,  and 
notice  be  given.  And  if  the  drawee  cannot  be  found  at  the  place 
specified  in  the  bill,  and  it  appears  that  he  never  resided  there, 
the  bill  is  then  also  to  be  considered  and  treated  as  dishonored. (7n) 


SECTION    II. 

PROCEEDINGS    ON   NON-ACCEPTANCE. 

What  the  holder  should  do  in  case  of  non-acceptance  or  a 
refusal  to  accept,  is  much  the  same  with  the  conduct  which  the 
holder  of  a  bill  should  pursue  in  case  of  non-payment.  The 
rule,  in  general,  is,  that  a  foreign  bill  should  be  protested  for  non- 
acceptance,  and  due  notice  given  to  the  prior  parties  ;  otherwise 
the  holder  will  lose  all  remedy,  both  on  the  bill  and  the  consid- 
eration for  which  it  was  given.  It  is  customary,  but  not  neces- 
sary, to  protest  inland  bills.  For  a  further  consideration  of  this 
subject,  reference  may  be  made  to  the  chapters  on  Presentment  for 
Demand, (w)  on  Notice,(o)  and  on  Protest.(7?)  The  peculiarities 
with  respect  to  bills  of  exchange,  as  regards  acceptance  for  honor., 
better  security,  or  by  a  drawee  au  besoin,  have  already  been  con- 
sidered. (7)  The  holder,  after  due  protest  for  and  notice  of  non- 
acceptance,  is  entitled  to  sue  the  drawer  immediately,  without 
waiting  for  the  bill  to  mature. (r)     The  reason  is,  that  what  the 

(m)  Wolfe  V.  Jewett,  10  La.  383.     Sec  Starke  v.  Chccsman,  Carth.  509. 

(n)   In/rci,  diap.  11. 

(o)   fnfra,  chap.  12,  13. 

(j))  Infra,  cliap.  14. 

('/)   Siipm,  \\\>.  64,  313. 

{>■)  Bri-;tit  V.  Punier,  Bullcr,  N.  P.  209  ;  Milford  ;-.  Mayor,  1  Dong.  .55;  Lord  Eldon, 
C.  J.,  Bisliop  V.  Yoiin-r,  2  B.  &  P.  78,  83  ;  Boot  v.  Franklin,  3  Johns.  207  ;  Miller  v. 
Ilacklcy,  5  id.  375  ;  Kohinson  v.  Ames,  20  id.  146;  Wallace  v.  Af,M-y,  4  Mason,  336  ; 
Sterry  w.  Robinson,  1  Day,  11;  Wintlnop  v.  Pepoon,  1  Bay,  408  ;  Evans  v.  Brid;:;es, 
4  I'ort.  Ala.  348  ;  Watson  v.  Tar])ley,  18  How.  517.  In  Mississippi  it  is  det'lared  by 
statute,  that  the  holder  shall  not  he  sued  till  after  maturity.  In  Watson  v.  Tarjiley,  the 
drawer  liveil  in  Mississip|)i,  the  hill  was  drawn  on  New  Orleans,  and  the  holder  lived 
in  Tennessee.  The  suit  was  brouf,'ht  in  the  United  States  court,  and  it  was  held  that 
the  statute  did  not  alTect  the  rights  of  the  holder.     Although  there  is  no  right  of  actiin 


en.  X.]  PROCEEDINGS    ON   NON-ACCEPTANCE.  351 

drawer  had  undertaken  has  not  been  performed,  the  drawee  not 
having  given  him  the  credit  which  was  the  ground  of  the  con- 
tract. (5)  The  holder  has  also  the  right  to  sue  any  indorser  forth- 
with,(^)  the  latter  being  considered,  in  this  respect,  as  a  new 
drawer.(?/)  The  amount  wliich  he  is  entitled  to  recover  is  the 
face  of  tlie  bill,  interest,  costs  of  protest,  and  damages. (r;)  The 
same  rules  apply  here  as  in  the  case  of  non-payment. 

The  holder  may,  if  he  pleases,  present  again  for  payment,  but 
the  liability  of  the  drawer  and  indorsers  having  become  fixed  by 
proper  presentment  and  notice  of  non-acceptance,  irregularity 
of  proceeding  in  presentment  for  payment  and  notice  thereof 
will  have  no  effect  in  prejudicing  his  right  in  this  respect. (it?) 
Nor  need  presentment  for  payment  be  averred,  nor,  if  averred, 
need  it  be  proved,  the  allegations  to  this  effect  being  clearly 
surplusage. (.^)  There  seems  to  be  no  lapse  of  time  short  of  the 
Statute  of  Limitations  which  can  affect  this  right  of  the  holder 
to  sue,  or  which  can  be  considered  negligence,  as  the  same  rule 
applies  as  in  the  case  of  liability  on  any  other  contract,  (y) 

The  holder  is,  as  has  been  said,(2;)  entitled  to  expect  an  ab- 
solute acceptance,  and  the  other  parties  have  also  the  right  to 

till  notice  of  non-acceptance,  the  debt  is  considered  to  have  accrued  at  the  time  of  draw- 
ing the  bill.  Macarty  v.  Barrow,  2  Stra.  949,  3  Wils.  16.  See  Puckford  v.  Maxwell, 
6  T.  R.  .52  ;  Hickling  v.  Hardey,  7  Taunt.  312. 

(s)  Lord  Ufansjield,  Bright  v.  Purricr,  cited  1  Doug.  55,  who  said  that  the  law  on 
the  point  had  been  clearly  settled  so  long  ago  as  1765. 

(0  Ballingalls  v.  Gloster,  3  East,  481,4  Esp.  268  ;  Mason  v.  Franklin,  3  Johns. 
202;  Weldon  v.  Buck,  4  id.  144  ;  Aytnar  r.  Sheldon,  12  Wend.  439  ;  Bank  of  Roch- 
ester r.  Gray,  2  Hill,  227  ;  Watson  v.  Loring,  3  Mass.  557  ;  Leno.x  v.  Cook,  8  id.  460; 
Wild  V.  Bank  of  Passamaquoddy,  3  Mason,  505  ;  Morgan  v.  Towles,  8  Mart.  La. 
730;  Evans  v.  Gee,  11  Pet.  80.  Li  Aymar  v.  Sheldon,  12  Wend.  439,  the  bill  was 
drawn  in  Martinique  on  Bordeau.x.  By  the  Law  of  France,  protest  for  non-payment, 
as  well  as  for  non-acceptance,  is  necessary  to  render  the  drawer  and  indorsers  liable. 
The  indorsement  was  made  in  New  York.  Held,  that,  although  presentment  for  pay- 
ment would  have  been  necessary  to  charge  the  drawer,  it  was  not  necessary  to  charge 
the  indorser. 

(u)  Lord  Ellenliorough,  Ballingalls  v.  Gloster,  3  East,  481. 

(v)   Sterry  r.  Robinson,  1  Day,  11  ;  Weldon  v.  Buck,  4  Johns.  144. 

{iv)  Miller  v.  Hackley,  5  Johns.  375  ;  Evans  v.  Bridges,  4  Port.  Ala.  348.  We  have 
already  seen  that  the  holder  is  not  bound  to  present  again,  at  the  request  of  the  drawer, 
supra,  p.  339. 

(x)  Mason  v.  Franklin,  3  Johns.  202 ;  Wallace  v.  Agry,  4  Mason,  336. 

(y)  Stori/,  J.,  Wild  V.  Bank  of  Passamaquoddy,  3  Mason,  505,  where  a  year  had 
elapsed,  and  the  drawer  had  become  insolvent.  Objections  were  made  on  these 
grounds  to  the  right  of  the  holder  to  recover  against  the  indorser,  but  were  over- 
ruled.    See  also  Lenox  v.  Cook,  8  Mass.  460. 

(s)  Supra,  p.  330. 


'oij'2  NOTES   AND   BILLS.  [CH.  X. 

require  that  the  acceptance  should  be  absolute,  or  else  that  they 
should  know  that  such  an  acceptance  had  been  refused.  The 
reason  is,  that  the  drawer  and  indorsers*  promise  to  pay  in  case 
the  drawee  does  not  fulfil  the  contract  expressed  in  the  terms 
of  the  bill ;  because,  if  the  holder  had  the  right  to  receive  a 
conditional  or  partial  acceptance  without  their  knowledge  and 
consent,  it  would  be,  in  fact,  giving  him  tlie  right  to  bind  them 
by  another  and  different  contract  from  that  into  which  they  had 
entered.  Therefore,  if  the  holder  take  an  acceptance  varying 
from  the  terms  of  the  bill,  without  giving  notice  to  the  prior 
parties,  he  discharges  them. (a)  If  he  causes  the  bill  to  be  pro- 
tested, and  gives  a  general  notice  to  all  the  parties  of  non- 
acceptance,  that  is  considered  as  a  refusal  of  the  drawee's  offer, 
and  the  latter  is  not  bound. (Z>)  Hence  it  would  seem  that  the 
only  course  for  a  holder  to  pursue  in  such  cases,  in  order  to  hold 
the  drawee  and  the  other  parties,  is  to  give  them  notice  of  the 
terms  offered,  and  obtain  their  consent  to  his  taking  the  accept- 
ance. 

It  has  been  said  that  the  effect  of  neglect  to  give  notice  where 
there  is  a  conditional  acceptance  is  done  away  or  prevented  by 
the  completion  of  the  conditions  before  the  maturity  of  the  bill ; 
and  a  neglect,  where  there  is  an  acceptance  as  to  part,  and  a 
refusal  as  to  the  residue  only,  discharges  the  persons  entitled  to 
notice  as  to  the  residue  only ;  but  this  has  been  doubted.  These 
questions  have  never  been  distinctly  settled  by  adjudication,  and 
text  writers  do  not  agree  in  relation  to  them.(c) 

(a)  Bai/ley,  J.,  Scbag  v.  Abitbol,  4  Maule  &  S.  462,  466  ;  Paton  v.  Winter,  1  Taunt. 
419.  In  Walker  i'.  State  Bank,  5  Scld.  .582,  13  Barb.  636,  a  bill  drawn  by  the  Em- 
])irc  Mills  on  A  was  presented  by  an  agent  of  the  holder,  and  accepted,  "  ))!iyablc  at 
the  American  Exchange  Bank,  Empire  Mills,  by  A,  Treasurer."  The  agent  gave  no 
notice  of  this  acceptance  to  the  holder,  drawer,  or  indorsers.  Held,  that  the  agent 
sliould  have  treated  the  bill  as  dishonored,  and  given  notice  accordingly,  and  for  neg- 
lect so  to  do  was  liable  to  the  holder. 

(b)  Sproat  v.  Mattliews,  I  T.  R.  182.  See  Bentinck  v.  Dorrien,  6  East,  200  ;  Mitchell 
I'.  Dcgrand,  1  Mason,  176. 

(c)  This  is  so  stated  in  Baylcy  on  Bills,  5th  ed.,  274,  and  by  Chitty,  331,  citing 
Bayley.  Story,  in  his  work  on  Bills,  ^  272,  note,  says,  after  quoting  the  remarks  of 
Baylcy  :  "  It  does  not  appear  to  mc,  that,  upon  principle,  this  doctrine  can  be  sup- 
[)orted  ;  for  the  acceptance  in  both  rases  is  contrary  to  tlic  tenor  of  tlic  bill,  and  may 
vary  the  rights  and  interests  of  the  antecedent  parties.  The  duty,  therefore,  would 
seem  to  be  clear,  that  there  should  be  a  due  protest,  and  due  notice  to  the  antecedent 
parties  of  the  dishonor,  and  qualified  or  conditional  accc|)tancc,  in  order  to  bind  thcra. 
This  is  the  doctrine  asserted  by  Pothier,  De  Change,  n.  47,  48." 


CII.  XI.]  PllESENTMENT   FOR    DEJIAND.  353 


CHAPTER    XI 


PRESENTMENT    FOR    DEMAND. 


SECTION    I. 

REASONS  FOR  THE  REQUIREMENT  OF  DEMAND   OF  PAYMENT  OF  NEGO- 
TIABLE  PAPER,  AND   OF  NOTICE   OF   DISHONOR. 

If  a  bill  be  regularly  accepted,  then  the  acceptor  is  bound  as 
an  original  promisor,  in  much  the  same  manner  as  the  maker  of 
a  promissory  note  ;  and  the  other  parties  are  regarded  in  the 
light  of  sureties,  and  are  therefore  liable  only  if  the  acceptor 
does  not  pay.  Tiiey  certainly  are  not  sureties  in  the  strict  sense 
of  this  word,  which  bears  a  precise  legal  meaning  of  its  own. 
But  they  are  as  sureties,  in  that  they  pay  only  if  he  who  is  as 
the  principal  debtor  does  not.  The  right  and  the  duty  of  the 
holder  of  an  accepted  bill,  or  of  a  negotiable  promissory  note,  are 
substantially  the  same.  This  right  is  to  demand  payment  of  all 
who  are  responsible  on  the  paper.  This  duty  and  obligation  are 
to  give  every  one  thus  responsible  all  the  opportunity  to  indem- 
nify himself  to  which  he  is  entitled  by  law.  No  one  could  hold 
another  as  a  surety  or  guarantor  in  any  form,  if  he  brings  the 
necessity  of  payment  on  the  guarantor  by  his  own  wrongful  neg- 
ligence, or  if  by  such  negligence  he  makes  such  payment  the 
ultimate  loss  of  the  guarantor,  by  depriving  him  of  the  means  of 
indemnity  to  which  he  was  entitled. 

These  universal  principles  of  guaranty  are  applied  to  nego- 
tiable paper  in  a  strict  and  peculiar  way. 

If  we  remember  the  especial  purpose  and  use  of  negotiable 
bills  and  notes,  and  remember  also  that  from  this  purpose  and  use 
springs  all  that  system  of  law  which  belongs  to  them  peculiarly, 
we  shall  understand  the  obligations  of  the  holder  of  such  paper, 
end  see  that  they  are  as  the  conditions  on  which  his  rights  rest. 

The  drawer  of  a  bill  is  as  a  surety  for  the  acceptor,  and  the 

Vol.  L— X 


854  NOTES   AXD   BILLS.  [CH.  XL 

indorser  is  as  a  surety  for  the  drawer  (or  for  the  maker  of  a  note) 
and  for  every  previous  indorser.  The  design  and  the  effect  of  this 
are  to  accumulate  upon  the  bill  the  credit  of  as  many  persons  aa 
choose  to  lend  their  credit  to  it ;  for  with  every  new  element  of 
security  the  adequacy  of  the  paper  to  represent  money,  and  take 
its  place  and  do  its  work  in  business  transactions,  is  increased. 

But  merchants  who  thus  enable  the  holder  to  coin  their  credit 
are  entitled  to  a  certain  protection  ;  and  the  measure  of  this 
must  be,  that  they  are  entitled  to  all  the  protection,  meaning 
thereby  all  the  efforts  of  the  holder  to  save  them  harmless,  and 
all  the  opportunities  to  save  themselves,  which  are  consistent 
with  the  free  use  of  the  instrument  as  money.  Nor  is  this  right 
of  the  parties  founded  merely  on  the  justice  due  to  them.  It 
rests  also  upon  the  fact,  that  the  safer  indorsers  are,  the  more 
readily  will  men  of  substance  indorse,  and  therefore  the  more 
certain  it  will  be  that  the  paper  will  be  paid  on  the  day  when,  by 
its  terms,  this  representative  of  money  is  to  become  money  by 
payment. 

It  is  for  these  reasons  that  the  holder  is  bound,  in  the  first 
place,  to  demand  the  payment  of  the  paper,  at  its  maturity,  of  the 
person  who  as  the  principal  debtor  is  primarily  bound  to  pay  it. 
And  then,  if  the  amount  due  is  not  paid  by  this  debtor,  to 
demand  it  at  once  of  each  person  who  is  as  a  surety  for  the 
original  debtor,  while  some  one  else  is  as  a  surety  for  liim  ;  and 
this  demand  must  be  made  successively  through  all  the  parties 
to  the  paper.  By  this  means,  every  party  to  the  paper  as  a  surety 
is  sure  that  he  shall  not  be  held  as  a  surety  by  reason  of  any 
delay  or  insufiiciency  in  demanding  the  money  from  him  who  is 
to  the  surety  as  a  principal  debtor. 

The  rules  of  law  in  respect  to  presentment,  demand,  notice  of 
dishonor,  and  liability  on  negotiable  notes  and  bills,  stand  forth 
from  the  main  body  of  the  common  law  as  very  distinct  and 
peculiar.  And  yet  they  arc  nothing  more,  in  substance,  than  a 
very  rigorous  and  precise  application  of  the  general  rules  in  re- 
spect to  guaranty,  and  these  rules  flow  from  the  most  obvious 
principles  of  common  justice.  A  guarantor  in  general  is  one 
who  is  bound  to  pay  the  debt  of  another  if  that  other  does  not 
pay  it.  lie  is  therefore  a  promisor  on  a  condition.  The  condi- 
tion is,  that  the  principal  debtor  does  not  pay  ;  and  this  means, 
that  he  does  not  pay  when  the  debt  is  payable  and  is  demanded  ; 


CH.  XI.]  PRESENTMENT    FOR   DEMAND.  355 

and  therefore  an  unsuccessful  demand  on  the  principal  debtor 
is  the  proper  evidence  of  his  failure  to  pay  the  debt,  and  of  the 
consequent  liability  of  tlie  guarantor.  And  if  the  guarantor  can 
show  that  he  has  sustained  a  loss  by  the  unreasonable  neglect  of 
the  creditor  in  making  this  demand  of  the  principal  debtor,  this 
should  constitute  a  sufficient  defence,  because  it  would  show  that 
the  plaintiir  had  failed  in  the  discharge  of  an  important  duty, 
and  that  the  defendant  had  been  injured  by  this  failure. 

It  must  also  be  remembered,  that  parties  who  put  their  names 
on  negotiable  paper  in  sucli  a  way  as  to  make  them  stand  as 
sureties  of  other  parties,  are  as  sureties,  not  only  on  condition, 
but  on  two  distinct  conditions,  and  one  of  them  on  three.  The 
drawer  is  bound  only  if  due  presentment  for  acceptance  is  made 
to  the  drawee,  and  then  (the  bill  being  accepted)  if  due  demand 
be  made  on  the  acceptor  for  payment.  And  every  indorser  is 
bound  only  if  due  demand  be  made  on  the  several  parties  before 
him  for  whom  he  stands  as  surety. 

But  further  than  this  neither  drawer  nor  indorser  is  bound, 
unless,  in  tlie  first  place,  the  requisite  demand  is  duly  made,  and, 
in  the  next  place,  due  notice  is  given  that  the  demand  is  inef- 
fectual. 

These  two  duties,  or  necessities,  are  entirely  independent,  and 
the  reasons  for  them  rest  upon  distinct,  although  connected 
grounds.  Every  one  who  in  any  way  guarantees  a  debt  has  a 
right  to  ask  that  this  debt  shall  be  collected  of  the  principal 
debtor  if  it  can  be  by  reasonable  endeavors  ;  and  such  payment 
of  it  is  of  course  a  discharge  of  all  claim  on  the  guarantor  ;  and 
the  indorsers  of  negotiable  paper  are,  as  we  have  seen,  as  guar- 
antors. 

But  if  the  creditor  cannot  collect  the  debt  himself,  it  is  always 
possible  that  the  guarantor  may,  or  may  indemnify  himself  for 
his  payment  by  something  which  he  may  do  himself,  or  may  com- 
pel the  principal  debtor  to  do.  He  is  therefore  always  entitled  to 
an  opportunity  to  procure  for  himself  this  indemnity  ;  and  for 
this  purpose  he  must  have  immediate  notice  of  that  necessity  for 
it  which  is  created  by  the  non-payment  of  the  debt  he  guarantees. 
These  two  rights  on  the  part  of  the  guarantor  are  therefore  dis- 
tinct, and  the  two  correlative  duties  or  obligations  of  the  creditor 
are  also  disimct ;  and  hence  a  full  discharge  of  the  one  duty  by 
the  creditor  is  no  excuse  whatever  for  the  non-discharge  of  tlie 


356  NOTES   AND    BILLS.  [CH.  XL 

other.  That  is  to  say,  notice  without  demand  leaves  it  uncertain 
whether  a  demand  would  not  have  been  effectual.  And  demand 
without  notice  gives  to  the  indorser  no  such  opportunity  of  in- 
demnifying- himself  as  the  very  fact  of  an  ineffectual  demand  on 
the  principal  makes  it  proper  that  he  should  have. 

We  have  said  that  each  indorser  is  entitled  to  have  due  de- 
mand made  against  all  parties  prior  to  himself,  and  to  notice  of 
non-payment.  But  in  practice  (a  practice  sanctioned  by  law  to 
a  great  extent),  demand  against  all  parties  but  the  principal 
payer  is  accompanied  with  notice  of  the  default  of  that  payer. 
Thus,  if  A  be  the  maker  of  a  note,  B  the  payee,  and  C,  D,  E, 
and  F  indorsers,  G,  the  last  indorsee,  makes  his  demand  on  A ; 
and,  if  the  note  is  not  paid,  gives  to  all  the  indorsers  severally 
notice  that  the  note  is  not  paid,  and  at  the  same  time  makes  a 
demand  on  them,  stating  that  they,  having  indorsed  tlie  note, 
are  looked  to  for  payment. 

These  rules  are,  as  will  be  seen,  substantially  the  same  with 
those  which  the  law  applies  to  all  cases  of  guaranty.  But,  in 
relation  to  negotiable  paper,  the  law  merchant  makes  these  rules 
far  more  precise  and  stringent  than  they  are  in  relation  to  other 
contracts.  Thus,  it  defines  wliat  is  unreasonable  delay,  both  as  to 
demand  and  as  to  notice,  by  determining  with  great  precision  the 
very  time  within  which  both  of  these  duties  must  be  discharged. 
And  it  defines  also  the  manner,  means,  place,  and  circumstances 
of  the  demand  and  of  the  notice,  so  as  to  leave  as  little  as  possi- 
ble open  for  question.  And  the  law  merchant  does  this  for  the 
purpose  of  enabling  mercantile  men,  or  those  who  deal  with  mer- 
cantile paper,  to  know  at  once  and  precisely  what  their  duties 
are,  and  what  their  rights  are.  And  it  dispenses  with  any  proof 
of  actual  loss  by  the  indorser,  if  the  duties  in  his  behalf  are  cer- 
tainly neglected,  by  assuming  peremptorily  that  one  bound  upon 
negotiable  paper  is  injured  if  any  delay  occurs  in  a  discharge  by 
the  liolder  of  his  duties  in  relation  to  it. 

Such  are  the  principles  and  reasons  of  the  rules  of  the  law 
merchant  in  regard  to  the  demand  of  payment  of  negotiable  pa- 
per, and  notice  of  non-payment.  And  these  rules  will  now  be 
considered  h\  reference  to  the  questions,  by  whom,  of  whom,  in 
what  manner,  when,  and  where  the  demand  for  payment  should 
be  made.  And  we  will  then  consider  the  excuses  which  may  be 
made  for  the  omission  or  irrogularity  of  demand  of  payment. 


CH.  XI.]  BY   WHOM   DEMAND   MAY   BE    MADE.  357 

SECTION     II. 

BY   WHOM  DEMAND   MAY   BE   MADE. 

The  general  rule  must  obviously  be,  that  a  demand  of  payment 
should  always  be  made  by  tlie  owner  of  the  paper,  either  person- 
ally or  by  his  duly  authorized  agent.  For,  as  payment  of  a  note 
can  only  be  good  when  made  to  a  party  who  has  a  right  to  re- 
ceive the  amount  due  thereon,  and  to  give  a  valid  discharge  to 
the  maker  for  the  same,  it  would  seem  that  payment  can  only  be 
demanded  by  one  who  has  the  power  to  pass  a  valid  title  to  tlie 
note,  and  to  release  the  maker  from  all  liability  incurred  by  rea- 
son of  the  instrument.  Where  a  demand  is  necessary  before  the 
promisor  can  be  charged,  it  is  clear  that  it  must  be  a  legal  de- 
mand ;  that  is,  such  as  he  is  bound  to  comply  with  ;  and  we  can 
see  no  reason  why  there  should  be  any  difference  in  this  respect 
between  such  a  demand  and  one  necessary  in  order  to  bind  an  in- 
dorser.  We  should  say  that  the  proper  test,  in  any  case,  to  deter- 
mine whether  the  demand  was  made  by  the  right  person  is  this : 
Would  the  maker,  by  payment  of  the  note  to  the  party  demand- 
ing payment,  thereby  buying  up  his  own  note,  be  placed  in  the 
same  position  as  an  ordinary  bona  fide  holder  of  any  other  note. 
If  he  would,  there  can  be  no  objection  to  the  demand  as  regards 
the  person  making  it.  If  he  would  not,  it  is  believed  that  the 
demand  would  be  insufficient,  because  not  made  by  the  right 
party,  (of) 


(d)  In  Robarts  v.  Tucker,  16  Q.  B.  560,  a  bill  was  accepted  payable  at  a  banker's, 
and  the  banker  paid  it  with  a  forged  indorsement  thereon.  The  acceptor,  having  been 
obliged  to  pay  the  bill  to  the  owner,  sued  the  banker  and  recovered.  Parke,  B.  said  : 
"  If  this  were  the  ordinary  case  of  an  acceptance  made  payable  at  a  banker's,  there  can 
be  no  question  that  making  the  acceptance  payable  there  is  tantamount  to  an  order,  on 
the  part  of  the  acceptor,  to  the  banker  to  pay  the  bill  to  the  person  who  is,  according 
to  the  law  merchant,  capable  of  giving  a  good  discharge  for  the  bill.  Therefore,  if  the 
bill  is  payable  to  order,  it  is  an  authority  to  pay  the  bill  to  any  person  who  becomes 
holder  by  a  genuine  indorsement.  And  if  the  bill  is  originally  payable  to  bearer, 
or  if  there  is  afterwards  a  genuine  indorsement  in  blank,  it  is  an  authority  to  pay  the 
bill  to  the  person  who  seems  to  be  the  holder."  In  Sussex  Bank  v.  Baldwin,  2  Har- 
rison, 487,  Dayton,  J.  said:  "  Any  person  may  present,  at  its  maturity,  a  promissory 
note  of  which  he  is  put  in  possession,  and  if  paid  in  the  ordinary  course  of  business, 
!ind  taken  up,  the  payment  is  good,  and  if  not  paid,  the  demand  is  good  as  a  ground- 
work for  notice  to  the  indorsers."     In  Bachellor  v.  Priest,  12  Pick.  399,  Wilde,  J.  said  • 


3o8  NOTES  AND   BILLS.  [CH.  XL 

Demand  may  certainly  be  made  by  an  agent  duly  authorized, 
and  the  agency  for  this  purpose  need  not  be  created  by  a  written 
instrument;  it  is  sufficient  if  made  by  parol. (e) 

The  vpiestion  has  often  arisen,  whether  a  demand  can  be  made 
by  the  (;lerk  of  a  notary.  It  is  clear  that,  in  cases  where  a  pro- 
test is  unnecessary,  the  clerk  may  make  the  demand,  for  he  is  not 
to  be  considered  as  acting  in  any  official  capacity,  but  as  the  mere 
agent  of  the  holder;  and,  as  has  been  already  said,  such  agency 


"A  presentment  by  any  person  in  possession  of  a  bill  bona  fide  is  sufficient  to  charge 
tiie  parties."  In  Leftley  v.  Mills,  4  T.  R.  170, 175,  Buller,J. :  "The  party  makinjr  the 
demand  must  have  authority  to  receive  the  money."  A  presentment,  by  the  last  in- 
dorser,  of  a  bill  indorsed  in  blank  by  the  payee,  but  made  payable  to  a  particular  per- 
son by  the  last  indorsement,  is  sufficient  to  charge  an  indorser.  Bachellor  v.  Priest, 
12  Pick.  399.  Tlic  question  has  arisen,  whether  possession  by  an  indorser  of  a  bill 
witli  a  subsequent  special  indorsement,  there  being  no  prior  indorsement  in  blank,  is 
sufficient  evidence  of  title.  The  following  authorities  hold  that  it  is  not,  on  the  ground 
that  it  appears  by  the  bill  itself  that  the  indorser  has  parted  with  his  title,  and  a  receipt 
from  the  last  indoi-see,  or  a  reassignment,  is  necessary.  Welch  i".  Lindo,  7  Crunch, 
159  ;  Gorgerat  v.  M'Cart}-,  2  Dall.  144,  1  Yeates,  94 ;  Thompson  v.  Flower,  13  Mart. 
La.  301,  where  it  is  held  that  the  fact  that  the  last  indorsement  is  cancelled  is  not 
sufficient;  Dicks  v.  Cash,  18  id.  45;  Sprigg  v.  Cuny,  19  id.  253;  GrifTon  i».  Jacobs, 
2  La.  192  ;  Hart  v.  Windle,  15  id.  265.  In  Mendez  v.  Carreroon,  1  Ld.  Rayni.  742, 
the  pkintiff,  an  indorser,  was  nonsuited  in  an  action  by  him  against  the  acccjjtor,  be- 
cause he  did  not  prove  that  he  had  paid  the  bill,  having  been  sued  by  a  subsequent 
indorser.  In  Dehers  v.  Harriot,  1  Show.  163,  it  was  held  that  a  bill  payable  to  A,  and 
indorsed  by  him  to  B,  and  by  B  to  C,  might  be  sued  on  by  B.  But  it  was  said,  in 
argument  by  the  plaintiffs,  that  "  we  proved  that  C  had  no  interest."  But  the  weight 
of  authority,  however,  is  in  favor  of  the  sufficiency  of  the  evidence.  In  the  following 
cases  the  last  indorsement  was  cancelled.  Bank  of  Utica  v.  Smith,  18  Johns.  230, 
where  objection  was  made  to  the  demand,  on  the  ground  that  the  last  indorsee  only 
could  make  it,  but  it  was  overruled.  Cliautuuquc  Co.  Bank  v.  Davis,  21  Wend.  584  ; 
Maidiattan  Co.  v.  Reynolds,  2  Hill,  140  ;  Dolifus  v.  Frosch,  1  Dcnio,367  ;  Brinkley  v. 
Going,  Breese,  288 ;  Kyle  v.  Thompson,  2  Scamm.  432  ;  Bowie  v.  Duvall,  1  Gill  &  J. 
175.  In  the  following  cases,  prior  possession  of  the  bill,  witii  the  last  indorsement  un- 
cancelled, was  held  sufficient.  Dugan  v.  U.  S.,  3  Wiieat.  172  ;  Lonsdale  v.  Brown,  3 
Wash.  C.  C.  404  ;  U.  S.  v.  Barker,  1  Paine,  C.  C.  156  ;  Picquct  v.  Curtis,  1  Sumner, 
478  ;  Pitts  v.  Keyser,  1  Stew.  154;  Johnson  v.  English,  id.  169  ;  Norris  v.  Badger,  6 
Cowen,  449;  Mottram  v.  Mills,  1  Sandf  37.  Sec  Morris  v.  Foreman,  1  Dall.  193. 
The  case  of  Welch  v.  Lindo,  7  Cranch,  159,  was  decided  in  1812,  Marshiill,  C.  J.  de- 
livering the  opinion.  The  case  of  Dugan  v.  U.  S.,  3  Wheat.  172,  was  decided  in  1818, 
the  opinion  being  by  Livingston,  J.  These  cases  are  in  opposition  to  one  nnotiicr,  and 
in  the  latter  no  reference  is  made  to  the  former. 

le)  Sussex  Bank  v.  Baldwin,  2  Harrison,  487  ;  Hartford  Bank  v.  Stcdman,  3  Conn 
489  ;  Bank  of  Utica  r.  Smith,  18  Johns  230  ;  Hunt  v.  Maybee,  3  Sold.  266  ;  Freeman 
V.  Hoyntoii,  7  Mass.  483;  Hartford  Bank  ».  Barry,  17  id.  94,  where  Parker,  C  T. 
said  :  "There  is  no  case  which  requires  that  the  i)er.soii  making  the  demand  should  bo 
authorised  by  letter  of  attorney  ;  it  is  sufficient  that  he  Inis  l)ecn  requested  to  perform 
the  act,  and  that  he  has  the  note  to  deliver  on  payment"  ;  Shed  v.  Brett,  1  Pick.  40    ' 


CH.  XI.]  BY   WHOM   DEMAND   MAY    BE   MADE.  359 

may  bo  created  by  merely  liaiidiiig-  over  the  bill  or  note  with 
instructions  to  demand  payment. (/)  But  in  cases  where  a  pro- 
test is  absolutely  required  as  the  only  admissible  evidence  of  dis- 
honor, many  authorities  hold  that,  if  the  clerk  makes  the  demand, 
it  is  insufficient  to  charge  an  indorser,  ou  the  ground  that  the 
notary  has  no  right  to  delegate  the  authority  conferred  upon  him 
by  law. (if)  There  are  some  authorities,  however,  which  hold 
that  such  a  demand  is  sufficient,  and  others  in  which  demand 
was  actually  made  by  the  clerk,  and  no  objection  made  to  it  on 

Seaver  v.  Lincoln,  21  id.  267,  where  the  demand  was  made  by  a  sheriff,  who  received 
tlie  note  and  a  writ,  with  instructions  to  demand  payment,  and  in  case  of  refusal  to 
serve  the  writ.  S/kiw,  C.  J. :  "  An  exception  was  taken  at  the  trial,  but  not  relied  on 
at  the  argument,  that  the  demand  of  payment  was  not  made  by  the  holder  personally 
I  am  not  sure  that  I  understand  the  ground  of  this  exception.  If  it  was  intended  tliat 
tlie  demand  was  not  made  and  the  notice  given  by  a  person  duly  authorized,  it  is  an- 
swered by  the  proof  that  the  witness  was  expressly  authorized  by  parol  to  make  the 
demand  and  to  receive  payment,  and  he  presented  the  note  and  had  it  ready  to  sur- 
render, cither  to  the  promisor  or  to  the  indorser,  upon  payment.  Such  authority  was 
amply  sufficient,  and  payment  to  the  witness  would  have  been  a  good  discharge." 
But  in  Branch  Bank  v.  Gaffney,  9  Ala.  153,  it  was  held  that,  in  the  case  of  indorsed 
paper,  serving  a  writ  by  a  sheriff  was  not  a  sufficient  demand  upon  which  to  found  a 
notice,  because  the  writ  does  not  authorize  the  officer  to  receive  the  money.  Sed  qimre. 
In  Hartford  Bank  v.  Barry,  17  Mass.  94,  the  note  was  indorsed  by  the  cashier  of  a 
bank,  and  transmitted  to  another  bank,  whose  cashier  caused  the  demand  to  be  made. 
No  evidence  of  any  express  authority  was  offered,  or  of  any  general  authority  in  such 
cases.  Objection  was  made  to  the  demand,  because  not  made  by  the  holder  or  his 
authorized  agent.  But  Parker,  C  J.  said  :  "  As  to  the  demand  made  on  the  maker  of 
the  note,  and  notice  of  non-payment  to  the  indorser,  in  the  ease  before  us  we  can  see  no 
sound  objection.  The  cashier  of  the  Hartford  Bank  put  his  official  signature  on  the  back 
of  the  note,  and  sent  it  to  the  cashier  of  the  branch  bank  in  Boston,  for  the  pm-pose  of 
making  the  demand,  and  it  was  by  him  caused  to  be  done.  It  is  insisted  that  this  act 
of  the  cashier  of  the  Hartford  Bank  was  without  authority  from  the  corporation.  But 
we  think  that  the  authority  may  be  implied,  it  being  the  duty  of  cashiers  to  see  to  the 
preliminary  measures  necessary  to  a  suit  upon  notes.  A  cashier  cannot  transfer  the 
property  of  the  corporation  in  a  note,  without  authority  from  them,  or  perhaps  from 
the  directors,  pursuant  to  powers  vested  in  them  by  the  corporation  ;  but  he  may  do 
what  is  requisite  for  the  recovery  of  a  note.  The  defendant  in  this  case  has  no  right 
to  deny  the  authority  of  the  cashier,  for  the  corporation  ratify  his  act  by  bringing  the 
action  upon  the  act  done  by  him.  Had  the  note  been  sent  on  without  any  indorse- 
ment by  tiie  cashier,  the  demand  would  have  been  good.  The  indorsement  amounts 
only  to  an  authority  to  deliver  the  note  to  the  maker  or  indorser,  as  cither  should  pay 
it,  and  the  payment  to  the  person  holding  the  note  under  such  circumstances  would 
i  ave  been  a  discharge." 

(/)   Sussex  Bank  v.  Baldwin,  2  Harrison,  487. 

(g)  Infra,  chapter  on  Protest.  But  if  the  law  of  the  place  where  a  note  is  payable 
sanctions  demand  by  the  clerk  of  a  notary,  such  a  presentment  will  be  good  in  a  place 
where  it  is  necessary  for  the  notary  to  make  the  demand  himself.  McClune  v.  Fitch, 
4  B.  Mon.  599. 


360  NOTES   AND   BILLS.  [CH.  XI. 

that  account. (//)  Mr.  Chitty,  in  an  earlier  edition  of  his  work, 
seemed  to  cite  with  approbation  a  dictum  of  Buller,  J.,  to  the 
effect  that  such  demand  was  insufficient.  A  correspondence  was 
soon  after  commenced  by  the  notaries  of  London,  who  insisted 
"  not  only  that,  by  mercantile  usage,  such  presentment  is  correct 
and  regular,  and  is  almost  invariably  adopted,  but  tliat,  as  far 
back  as  the  memory  of  the  oldest  notary  here  can  extend,  it  has 
always  been  the  custom  so  to  present  them."  And  a  case  is  men- 
tioned in  which  a  notary  was  allowed  by  Lord  EUenborough  to 
give  evidence  of  such  a  presentment  by  him  of  a  foreign  bill. 
They  also  said,  that  "  commercial  business  must  instantly  come  to 
a  stand  if  a  different  rule  prevailed  ;  because  it  would  be  just  as 
impossible  for  all  the  bills  in  this  country  to  be  presented  in  per- 
son by  notaries  as  by  bankers. "(/) 

In  the  latest  edition  of  the  work,  an  opinion  is  expressed  by  the 
learned  editor  that  this  practice  "  is  amply  justified  by  the  law 
of  principal  and  agent,  and  not  questioned  in  any  case  whicli  has 
occurred  before  the  courts  of  England. "(j) 

If  the  holder  is  dead,  the  administrator  or  executor  should 
make  the  demand,  if  any  be  appointed. (/t)  If  none  is  appointed, 
the  subsequent  parties  will  not  be  discharged  for  want  of  pre- 
sentment at  maturity,  if  the  executor  or  administrator  causes 
demand  to  be  made  witliin  a  reasonable  time  after  his  appoint- 
ment. (/) 

If  the  holder  is  insolvent,  demand  should  be  made  by  jiis 
assignee,  if  any  is  appointed, (w)  and  if  there  be  )ione,  then  it 
seems  that  the  holder  himself  may  present. (m)  If  the  hold- 
er neglects,  we  should  doubt  whether  his  neglect  should  be 
permitted  to  prejudice  his  creditors,  if  assignees  were  ap- 
pointed with  no  unreasonable  delay,  and  forthwitli  made  the 
demand. 


(/()  Infra,  chapter  on  Protest. 

(/)  Cliitty  on  Hills,  12th  Am.  cd.,  400,  note  z. 

[j)  Chitty  on  Hills,  10th  En<,'.  ed,  3.i5,  note  4. 

(k)  Story.  Prom.  Notes,  §  2,50. 

(/)   Wiiite  ?i.  Stoddard,  11  Gray, 

(m)  Story,  I'rom.  Notes,  §  249. 

{»)  Story,  Prom.  Notes,  §  249.  In  E.\  parte  Molinc,  19  Vcs.  216,  1  Rose,  30.3, 
Lord  Eldoii  said,  with  reference  to  notice  :  "  The  hanknipt  re|)resents  his  estate  until 
assignees  are  clioscn."  In  that  case  it  was  held,  that  notice  to  a  l)aiikrii|)i,  as  <lrawer 
before  the  dioicc  of  assignees,  wa.s  good. 


CH.  XI.]  OF   WHOJI   DEMAND   5IAY   BE   MADE.  361 

It  is  said  that  any  porsou  who  liappcus  to  be  the  holder  of  tlic 
bill  at  the  time  it  fulls  due,  wiiether  by  accident  or  otherwi^?, 
may  and  ought  to  demand  payment,  although  he  may  not  have 
the  right  to  require  it  for  his  own  benefit ;  (o)  but  we  have  seen 
that  it  may  be  doubted  whether  such  holder  should  or  could 
make  the  demand,  unless  he  had  the  right  to  deliver  up  the 
notes  on  payment.  In  tlic  ca!^e  of  a  note  made  payable  at  a 
particular  place,  it  will  be  seen  subsequently,  that  presentment 
need  not  be  made  by  any  person,  and  tliat  it  is  sufficient  if  the 
note  is  there  ready  to  be  delivered  up  by  some  one  authorized  to 
receive  payment,  (/y) 


SECTION    III. 

OF   WHOM   DEMAND   MAY  BE   MADE. 

A  PERSONAL  presentment  to,  and  demand  of,  the  party  bound 
to  pay,  is  not  strictly  necessary  before  an  indorser  can  be  charged, 
for  it  is  always  sufficient  if  made  to  a  person  authorized  to  pay 
the  bill  or  note,  at  tlie  right  place  and  time,  and  in  the  proper 
way.(r7) 

Presentment  may  be  made  to  the  acceptor  or  maker  himself, 
or  to  his  authorized  agent, (r)  and  a  presentment  to  the  clerk  of 
an  acceptor  or  promisor,  at  his  counting-house,  has  been  held 


(o)  Chitty  on  Bills,  365.  The  assii,'nees  of  a  bankrupt  who  was  merely  an  agent  may 
present  and  receive  payment  of  bills  and  notes  in  their  possession  without  being  liable 
in  trover,  though  they  must  pay  over  the  proceeds  when  demanded  by  the  party  en- 
titled to  them.  Jones  v.  Fort,  9  B.  &  C.  764,  4  Man.  &  R  547  ;  Tennant  v.  Strachan, 
Moody  &  M.  377,  4  Car.  &  P.  31. 

(/))  Infra,  p  365. 

(7)  For  presentment  where  the  maker  cannot  be  found,  see  infra,  p.  448  ;  in  case  of 
bills  or  notes  payal)le  at  a  specified  place,  infra,  p.  365. 

(/■)  Matthews  v.  Haydou,  2  Esp.  509.  If  the  drawee  goes  to  sea,  leaving  an  agent 
with  jiower  to  accept  bills,  and  the  agent  accepts  one,  it  must  be  presented  to  the  agent 
for  payment,  if  the  drawee  continues  absent.  Philips  v-  Astling,  2  Taunt.  206  In 
Belmont  Bank  v.  Patterson,  17  Ohio,  78,  the  notary  went  to  a  hotel  where  the  ac- 
ceptor had  been  boarding,  and  was  informed  that  he  had  left  town  for  a  few  days. 
Held,  that  the  indorser  was  liable  without  presenting  the  bill  to,  or  demanding  pay- 
ment of,  any  one  at  the  hotel ;  Birchird,  C.  J.  dissenting,  on  the  ground  that  the  notary 
should  have  inquired  whether  the  wife  of  the  maker,  or  some  other  party,  had  not  been 
authorized  to  pay  the  bill  in  the  acceptor's  absence.  The  dissenting  opinion  would  seem 
to  be  the  better  one. 

vol..  I.  31 


3G2  NOTES   AND   BILLS.  [CH.  XL 

sufficinnt,  without  showing  any  special  authority  given  him  under 
such  circumstances. (5) 

Presentment  of  a  partnership  note  to  one  of  the  partners  is 
sufficient ;  (t)  and  if  one  of  two  partners  dies  before  maturity, 
presentment  should  be  made  to  the  survivor,  and  not  to  the 
representatives  of  the  deceased,  because  the  liability  devolves 
upon  the  surviving  partner.  (z<) 

Where  there  are  several  promisors  of  a  note  who  are  not  part- 
ners, it  is  necessary  that  the  note  should  be  presented  to  all 

(s)  Draper  v.  Clemens,  4  Misso.  52  ;  Stainback  v.  Bank  of  Virginia,  11  Grat.  260  ; 
Stewart  v.  Eden,  2  Caines,  121  ;  Harris  v.  Packer,  3  Tyrw.  370,  note;  Reynolds  v. 
Cliettlc,  2  Camp.  596.  But  in  La.  State  Ins.  Co.  v.  Shamburgh,  14  Mart.  La.  511,  tlio 
promisor,  between  the  making  and  the  maturity  of  a  note,  changed  his  domicil  from 
one  place  to  another  in  the  same  State.  Demand  was  made  on  his  agent,  with  wiioni 
he  had  left  full  powers  to  represent  him  in  all  things  touching  his  affairs.  Held  insuf- 
ficient to  charge  an  indorser.  Sed  quwre.  In  Bank  of  England  v.  Newman,  1 2  Mod. 
241,  Holt,  C.  J.  held,  "that  a  demand  of  a  servant  of  the  drawer,  who  used  to  pay 
money  for  him,  was  a  good  demand,"  to  hold  an  indorser. 

(t)  "  The  general  rule  is,  that  where  an  acceptance  is  by  partners,  then  the  present- 
ment for  payment  should  be  at  their  place  of  business,  or  at  the  dwelling-house  of 
either  of  them."  Bacon,  J.,  Otsego  Co.  Bank  v.  Warren,  18  Barb  290.  But  in  this  case 
a  notarial  certificate  of  presentment  "  to  one  of  the  firm  of  W.  B.  &  Co."  was  held  in- 
sufficient to  charge  an  indorser,  because  it  did  not  state  who  composed  the  firm,  nor 
the  name  of  the  person  on  whom  the  demand  was  made ;  and  that  evidence  of  the  cus- 
tom of  notaries  to  make  such  entries  in  their  certificates  was  inadmissilfle,  the  custom 
being  bad.  In  Shed  v.  Brett,  1  Pick.  401,  demand  was  made  on  one  of  two  partners, 
and  it  seems  to  have  been  taken  for  granted  that  there  was  no  objection  on  that  ac- 
count. In  Granite  Bank  v.  Ayres,  16  Pick.  392,  demand  was  made  of  a  partnership 
note,  at  the  last  place  of  business  of  the  firm.  An  answer  was  given  by  the  parties 
occupying  the  place,  that  the  firm  had  failed  and  the  partners  had  left  town.  One  of 
the  partners  was,  however,  living  in  town,  and  his  name  was  in  the  directory.  Held  in- 
eufhcient  to  charge  an  indorser.  In  Erwin  v.  ]")owns,  15  N.  Y  575,  it  was  held  that 
jjresentinent  to  one  of  two  persons  who,  by  their  signature,  purport  to  constitute  a 
partnership,  is  sufficient  to  charge  an  indorser.  In  Crowley  v.  Barry,  4  Gill,  194,  au 
action  by  an  indorsee  against  the  payee  and  indorser  of  a  partnership  note,  it  was 
proved  that  the  makers  had  dissolved  partnersliij),  giving  public  notice  thereof  in  a 
newspaper  in  Washington,  their  place  of  business,  and  where  the  note  was  made,  and 
also  that  one  of  the  partners  was  authorized  to  settle  up  the  iiartnership  concerns.  The 
plaintiff  lived  in  Baltimore  and  had  the  note  presented  to  the  other  partner.  Arc/ur, 
C.  J.  said  :  "  It  might  be  sufficient  to  say  that  this  dissolution  had  by  no  evidence  in  tiie 
cause  been  brought  home  to  the  knowledge  of  the  holder  of  the  note.  But  we  do  not 
desire  to  determine  the  question  on  this  ground,  because  we  are  clearly  of  opinion  that 
a  demand  on  one  of  the  partners  was  sufficient,  as  each  partno'  represents  the  iiartner- 
ship. Before  a  dissolution,  it  clearly  would  not  be  necessary  to  make  a  dcnnind  on 
both,  nor  could  it  he  necessary  after  a  dissolution,  for  the  partnership,  as  to  all  anfece 
dent  transactions,  continues  until  they  are  dosed."  A  demand  on  the  agent  of  ono 
parlntT,  after  dissolution  of  the  firm,  in  tho  absence  of  the  partner,  was  ncld  oi\f 
cient  in  Brown  r.  'I'urner,  15  Ala.  8.'12. 

(u)  Cayuga  Co.  Bank  v.  Hunt,  2  Hill,  635. 


CH.  XI.]         OF  WHOM  DEMAND  MAY  BE  MADE.  363 

before  the  liability  of  au  iudorscr  can  accrue  ;  (v)  but  the  au- 
thorities are  not  uniform  upon  this  point. (z^) 

Where  the  maker  dies  before  the  maturity  of  the  note,  demand 

(»)  In  Union  Bank  v.  Willis,  8  Met.  504,  a  note  was  signed  by  A,  and  on  the  bacic 
was  the  signature  of  B  &  Co.,  wlio  were  not  i)arties  to  the  note.  The  holder  demanded 
payment  of  B  alone.  By  the  law  of  Massachusetts,  the  parties  are  liable  as  joint  and 
several  promisors.  Held,  that  the  demand  was  insufficient.  LIubbaid,  J.  said  :  "  Tiio 
precise  question  here  presented,  we  believe,  has  not  been  decided  in  any  reported  case. 
If  the  joint  and  several  promisors  are  to  be  considered  in  the  light  of  partners,  then  a 
notice  to  one  must  bo  esteemed  a  notice  to  all,  as  partners  are  but  one  person  in  legal 
contemplation  ;  each  partner,  acting  in  such  capacity,  being  not  only  capable  of  per- 
forming what  the  whole  can  do,  and  of  receiving  that  which  belongs  to  all,  but  by  such 
acts  necessarily  binding  all  the  partners.  It  follows,  therefore,  as  an  incident  to  such 
joint  relations,  that  all  the  partners  are  affected  by  the  knowledge  of  one.  But  in  re- 
spect to  mere  joint  and  several  promisors  on  a  note,  there  is  not  such  absolute  commu- 
nity of  interest  between  them,  nor  such  necessary  connection  with  each  other,  as  to  con- 
stitute them  partners.  The  relationship  is  confined  to  the  present  specific  liability  of  a 
joint  and  several  promise,  and  which  cannot  be  extended  by  the  act  of  one  so  that  his 
conduct  shall  necessarily  bind  the  other.  As  between  themselves,  one  promisor  may  be  a 
mere  surety,  and  the  other  the  debtor ;  one  surety  may  have  received  security  for  lend- 
ing his  name,  the  other  not.  Or,  if  there  are  three  joint  and  several  promisors,  two  may 
be  sureties,  and  the  other  the  principal  debtor,  although  the  fact  may  not  appear  on  the 
note.  As  the  incidents,  then,  of  a  partnership  do  not  attach  to  such  a  limited  joint  lia- 
bility, there  being  neither  a  community  of  interests  nor  joint  participation  of  profit  and 
loss,  the  fact  of  knowledge  on  the  part  of  the  whole,  from  the  actual  knowledge  of  one, 
does  not  follow  as  a  presumption  of  law ;  and  demand  upon  one  is  not,  therefore,  in 
law,  a  demand  upon  the  wliole.  If  then  the  bringing  home  of  knowledge  to  each,  or 
proof  of  a  demand  upon  each,  is  a  fact  necessary  to  be  proved,  in  order  to  bind  third 
persons,  then  such  knowledge,  or  such  demand  on  each,  must  be  proved  as  any  other 
fact."  It  has  been  held  that  notice  to  each  of  two  or  more  joint  indorsers  is  neces- 
sary in  order  to  render  any  indorser  liable.  Sayre  v.  Frick,  7  Watts  &  S.  383  ;  Shep- 
ard  V.  Hawley,  1  Conn.  367. 

(w)  A  demand  upon  one  of  three  joint  and  several  promisors  was  held  sufficient  in 
Harris  v.  Clark,  10  Ohio,  5.  Hilchcocl;  J.  said:  "If  we  were  to  hold  that  a  demand 
must  be  made  upon  all  the  makers  in  order  to  charge  the  indorser,  such  decision  would 
operate  to  discharge  many,  if  not  all,  indorsers  of  notes  of  a  character  similar  to  the 
one  now  under  consideration.  It  will  be  seen  that  the  note  is  not  payable  at  any  par- 
ticular place ;  if  it  were,  a  demand  at  the  place  would  be  sufficient.  But  as  it  is,  a  per- 
sonal demand  was  necessary.  Now  suppose  the  makers  resided  in  different  States,  or  in 
different  and  distant  parts  of  the  same  State,  how  could  demand  be  made  of  all  so  as  to 
charge  an  indorser  ?  It  must  be  made  on  the  day  the  note  falls  due,  or,  where  days  of 
grace  are  allowed,  upon  the  last  day  of  grace.  Will  it  be  said  that  demand  can  be 
made  at  different  and  distant  places  on  the  same  day,  through  the  agency  of  letters  of 
attorney  1  I  believe  such  a  practice  has  not  been  heard  of,  at  least  we  have  found  noth- 
ing like  it  in  the  books."  "  Upon  the  whole,  although  we  feel  that  there  are  apparent 
difficulties  in  the  way,  we  see  no  substantial  objection  to  considering  the  makers  of  a 
'oint  and  several  promissory  note  in  the  light  of  partners  in  that  particular  fans- 
tiction.  True,  they  may  be  sued  separately,  or,  like  partners,  they  may  be  sued  jointly ; 
.\nd  as  [he  joint  and  separate  property  of  partners  is  liable  for  partnership  debts,  so  the 
property  of  all  and  each  of  the  makers  of  such  a  note  may  be  sabjected  to  its  satis- 
faction."    The  answer  to  the  main  objection  would  be,  that,  where  the  makers  live 


364  N'OTES   AND    BILLS.  [CH.  XI. 

should,  hi  general,  be  made  of  his  personal  representatives  ;  (x) 
but  wliere  an  executor  or  administrator  is  allowed  by  law  a 
certain  time  within  wliich  to  settle  up  the  estate,  and  is  not 
liable  before  the  expiration  of  that  period,  it  lias  been  held  that 
an  indorser  is  liable  without  a  demand  on  the  maker,  provided 
the  note  falls  due  within  the  time  limited, (//)  but  not  other- 
wise.(2) 

at  so  great  a  distance  from  each  other  as  to  make  a  demand  on  all  on  the  day  of  ma- 
turity impossible,  a  demand  at  that  time  as  to  all  but  one,  at  least,  is  excusable. 

(r)  Price  v.  Young,  1  Nott.  &  M.  438;  Toby  v.  Maurian,  7  La.  493;  Gowcr  v. 
Moore,  25  Maine,  16,  where  it  was  held,  that  knowledge  on  the  part  of  the  indorser  tiiat 
the  maker  had  died,  that  his  estate  was  insolvent,  and  that  the  note  would  not  be  paid, 
constituted  no  excuse  for  non-presentment.  The  holder  had,  prior  to  the  maturity  of 
tlie  note,  proved  his  claim  in  insolvency  against  the  maker's  estate,  and  notified  the 
indorser  of  the  death,  and  that  he,  the  indorser,  would  be  looked  to  for  payment. 
The  indorser  was  likewise  notified  again  a  mouth  after  the  note  fell  due.  The  fact 
that  the  indorser  has  become  the  administrator  docs  not  dispense  with  demand  and 
notice.  Juniata  Bank  v.  Hale,  16  S.  &  R.  157.  In  Caunt  v  Thompson,  7  C.  B.  400, 
an  action  by  an  indorsee  against  the  drawer,  the  party  having  possession  of  the  bill 
presented  it  at  the  acceptor's  house,  and  said  to  the  drawer,  who  had  been  made 
the  executor  of  the  acceptor,  and  was  at  the  last  place  of  abode  of  the  latter  :  "  I  have 
brouglit  a  bill  from  C.  (the  plaintiff') ;  you  know  what  it  is."  The  drawer  replied  :  "  I 
am  tlie  executor  of  the  acceptor;  you  must  persuade  the  plaintiff  to  let  the  bill  stand 
over  a  few  days,  because  the  acceptor  has  only  been  dead  a  few  days.  I  will  see  the 
bill  paid."  Held  a  sufficient  presentment.  But  in  Magruder  v.  Union  Bank,  3  Pet. 
87,  7  id.  287,  it  was  held  that,  if  the  maker  dies  and  the  indorser  is  appointed  his  ad- 
ministrator, deniand  on  iiim  as  administrator  is  necessary  to  charge  him  as  indorser. 

(j/)  Tliis  is  so  declared  in  Massachusetts,  where  the  time  limited  is  a  year.  Hale  v. 
Burr,  12  Mass.  86,  where  Parker,  C.  J.  said  :  "In  England,  however,  there  may  bo 
reasons  for  making  a  demand  upon  an  executor  or  administrator  of  a  deceased  prom- 
isor in  a  note  necessary,  which  do  not  exist  in  this  country ;  and  if  the  reasons  upon 
which  the  law  is  founded  do  not  exist,  there  is  no  cause  why  wc  should  not  decide 
according  to  the  nature  and  spirit  of  the  contract.  In  this  State,  a  demand  upon  an 
administrator  would  in  most  cases  be  entirely  migatory.  He  is  not  obliged  to  p.ay  any 
debt  of  the  deceased,  except  such  as  are  particularly  privileged,  until  a  year  from  his 
appointment.  If  sued  within  the  year,  he  is  entitled  to  a  continuance  of  cour.sc.  This 
indulgence  is  given  to  enable  him  to  collect  the  effects  of  the  deceased,  and  to  ascer- 
tain their  sufficiency  to  discharge  all  the  debts.  If  there  should  be  a  deficiency,  a  gen- 
eral distribution  takes  place  among  all  the  creditors,  without  regard  to  the  character 
of  their  demands,  unless  in  the  few  excepted  ca.scs  above  alluded  to.  Under  these  cir- 
cumstances, should  he  pay  any  debt,  and  it  should  afterwards  ajipear  that  the  estate  is 
insolvent,  he  pays  at  his  peril.  A  prudent  executor  or  administrator  will  therefore 
seldom  hazard  the  payment  of  a  debt  before  he  has  ascertained  the  sitinition  of  the 
estate,  and  a  demand  upon  him  would  be  sure  to  meet  with  a  refusal.  Such  a  demand 
would,  therefore,  bo  merely  a  troublesome  formality,  without  any  u.se ;  and  notice  to 
the  indorser  that,  the  promisor  being  dead,  he  will  be  looked  to  for  payment,  will 
in  every  respect  I)e  as  advantageous  to  iiirn  as  a  previous  demand  upon  the  ])rornisor." 
See  Oriental  Bank  v.  Hlakc,  22  Pick.  206.  This  has  been  so  held  in  Louisiana.  Lan- 
dry V.  Staii>;l)ury,  10  La.  48.''?. 

(s)  Sec  Hale  v.  Burr,  12  Mass.  86;  Oriental  Bank  v.  Blake,  22  Pick.  20G.    PuLnaiV' 


CII.  XI.]  OF   WHOM   DEMAND    MAY   BE   xMADE.  365 

It  will  be  seen  hereafter  that  the  insolvency  of  the  maker  or 
aceeptor  forms  no  valid  excuse  for  non-presentment. (a)  And  it 
has  been  held  that  a  demand  on  the  assignee  is  not  sufficient.  (6) 
Certainly,  if  there  is  no  assignee,  the  demand  should  be  made  of 
the  maker  himself. (c)  If  the  maker  be  an  unmarried  woman 
when  the  note  is  made,  but  marries  before  maturity,  the  husbaiid 
is  the  proper  party  to  whom  the  note  should  be  presented,  if  he 
can  be  found. (<:/) 

It  may  be  added,  that  if  the  promisor  should  become  a  lunatic, 
or  otherwise  incapable  of  making  a  valid  contract,  presentmc/it 
should  of  course  be  made  to  his  guardian,  or  the  parties  havii-g 
legally  the  management  or  control  of  his  property  and  busine^s. 

We  have  already  intimated,  and  shall  show  more  fully  here- 
after, that,  when  a  note  or  bill  is  payal^le  at  a  particular  place,  )io 
presentment  or  demand  is  necessary,  as  it  is  sufficient  if  the  note 
or  bill  is  at  that  place  ready  to  be  delivered  up  to  the  party 
calling  for  and  prepared  to  pay  it.(e) 

J.  said:  "But  if  the  note  should  fall  due  after  the  expiration  of  the  year,  and  the 
estate  should  not  be  represented  insolvent,  there  would  seem  to  be  no  reason  why  tho 
bolder  should  not  make  a  demand  on  the  executor  or  administrator  of  the  promisor  ; 
for  he  would  then  be  liable  to  a  suit  upon  non-payment,  and  upon  a  demand  he  might 
safely  pay  ;  and  the  indorser  would  have  reason  to  complain  of  the  laches  of  the  holder, 
if  he  had  neglected  to  make  a  demand  upon  the  executor  or  administrator,  and  to  giva 
notice  of  a  default  of  payment,  under  such  circumstances." 

(a)  Infra,  p.  446. 

(6)  In  Armstrong  v.  Thruston,  11  Md.  148,  where  the  makers  of  a  partncrsliip  nota 
had  failed,  and  an  assignment  had  been  made,  a  demand  at  the  place  of  business  of  the 
assignee  and  trustee  was  held  insufficient.  Bartol,  J.  said  the  demand  '■  ought  to  have 
been  made  on  the  makers,  or  at  their  place  of  business ;  tlicir  insolvency  does  not 
excuse  the  holder  from  a  compliance  with  the  statute." 

(c)   See  infra,  section  on  Excuses  for  Absence  of  Demand  of  Payment. 

((/)  In  Cromwell  v.  Hynson,  2  Esp.  511,  a  bill  had  been  presented  to  the  drawee,  and 
acceptance  refused.  The  bill  was  then  sent  to  the  indorscr's  house,  and  shown  to  his 
wife,  the  husband  being  absent,  and  the  circumstances  comnmnicated  to  her.  Held  a 
sufficient  demand  to  charge  the  indorser. 

(e)  In  Reynolds  v.  Chettle,  2  Camp  596,  a  bill  accepted  payable  at  H.  &  Co.'s, 
bankers,  was  presented  at  the  clearing-house  to  their  clerks.  Held  a  sufficient  present- 
ment. So  Harris  v.  Packer,  3  Tyrw.  370,  note.  In  Hunt  v.  Maybee,  3  Seld.  266,  a 
note,  signed  Jacob  Ferdon,  was  presented  at  the  place  designated  in  pencil  at  the  foot 
of  the  note,  to  a  person  who,  on  being  asked,  said  that  he  was  the  maker.  Held,  prima 
facie,  to  be  sufficient  to  charge  an  indorser.  The  defendant  objected  to  the  admission 
of  the  evidence  that  the  party  inquired  of  said  he  was  Jacob  Ecrdon.  Edmonds,  J. : 
"  This  was  complete  proof,  for  it  was  part  of  the  res  (jest(e  ;  and  besides,  tlie  objection 
s  that  it  did  not  prove  his  identity,  which  is  an  objection  as  to  sufficiency,  not  com- 
petency, and  the  evidence  was  offered,  not  to  prove  identity,  but  merely  as  a  part  of 
the  maker's  refusal  to  pay.  There  was  no  error  there." 
31* 


366  NOTES   AND   BILLS.  [CH.  XI. 

But  if  presentment  is  made  at  the  place  specified,  or,  in  tlie 
case  of  a  note  payable  generally,  at  the  place  of  business  of  the 
acceptor  or  maker  during  business  honrs,  or  at  his  domicil  at  a 
reasonable  hour  of  the  day,  it  would  seem  that  the  presentment 
is  sufficient  if  made  to  any  person  to  be  fonnd  on  the  premises, 
especially  if  the  maker  is  absent  or  inaccessible,  for  it  is  the  duty 
of  the  maker  to  be  present  and  within  reach,  or,  if  absent,  to 
leave  some  one  to  pay  the  note  or  bill.(/)  In  the  case  of  bills 
payable  at  a  specified  place,  it  has  been  held  that  an  allegation 
of  presentment  to  the  acceptor  is  proved  by  evidence  of  present- 
ment at  the  place  ;  (g-)  or  where  the  bill  is  payable  at  a  banker's, 
by  presentment  to  his  clerk  at  the  clearing-house. (/i)  But  in 
such  case  it  has  also  been  held  that  an  allegation  of  presentment 
at  the  place  was  sufficient,  without  any  averment  of  presentment 
to  either  acceptor  or  banker,  (i) 

Where  there  is  no  person  upon  whom  demand  can  be  made,, 
an  indorser  is  liable  without  presentment ;  as  where  an  agent, 
authorized  to  sign  notes  for  his  principal,  made  a  note  which  was 
indorsed  immediately  after  the  making,  and  the  principal  was 
dead  at  the  time,  none  of  the  parties  being  aware  of  his  death,  it 
was  held  that  a  demand  was  needless. (y) 


(/)  See  Cromwell  v.  Hynson,  2  Camp.  596,  supra,  p.  365,  note  d;  Philips  v.  Ast- 
linjr,  2  Taunt.  206,  supra,  p.  361,  note  r;  Draper  v.  Clemens,  4  Misso.  52.  In  Bux- 
ton V.  Jones,  1  Man.  &  G.  83,  1  Scott.  N.  R.  19,  deeided  since  the  Stat.  1  &  2  Geo. 
IV.,  a  bill  was  addressed  to  the  drawee,  at  tlie  number  of  his  house  and  the  name 
of  the  street.  It  was  accepted  generally.  The  holder  presented  the  bill  at  the  door 
of  the  house  to  an  inmate  who  was  coming  out.  The  acccjitor  had  roTiiovcd,  and  the 
inmate  told  the  holder  ^o.  The  holder  left  a  card,  containing  notice  of  the  maturity 
of  the  bill,  with  the  inmate.  The  occupier  of  the  house  knew  where  tlic  acceptor  had 
removed.  Held  .'iufficient  to  charge  an  indorser.  In  Brancii  Bank  v.  Hodges,  17  Ala. 
42,  the  presentment  was  made  to  the  book-keeper  of  the  acceptor,  at  his  counting- 
room,  the  acceptor  being  absent.  The  drawer  was  held.  In  Moodie  v.  Morrall,  1 
Const.  R.  367,  presentment  was  made  to  tiie  wife  of  the  maker,  as  she  informed  the  no- 
tary that  her  husband  was  out  of  town.  Held  sufTicient.  Presentment  at  the  acceptor's 
dwelling-house  is  sulHcient,  there  being  no  one  there  to  answer  for  him,  and  no  pro- 
vision having  been  made  for  payment  at  three  o'clock,  P.  M.  Stivers  v.  Prentice, 
3  B.  Mon.  461.  See  Bellievre  v.  Bird,  16  Mart.  La.  186;  Ilamer  r.  John.son,  16  La. 
242  ;  Oakey  v.  Beauvais,  1 1  id.  487. 

((/)   Infra,  p.  427,  note. 

(A)  Supra,  p.  .365,  note  e. 

(i)  Infra,  ]>.  427,  note. 

(j)  Burrill  v.  Smith,  7  Pick.  291. 


CH.  XI.]  IN   WHAT   JIANXI:R   DEMAND    SHOULD    BE   MADE.  3G7 

SECTION    lY. 

IN  WHAT  MANNER  DEMAND  SHOULD  BE  MADE. 

The  demand  should  be  for  an  absolute,  immediate  payment  in 
cash.  This  would  be  presumed  to  be  the  meaning  of  a  simple 
demand  of  "  payment."  But  if  the  holder  saw  fit  to  accept  any- 
thing else  in  payment  but  cash,  this  would  discharge  the  subse- 
quent parties  as  effectually  as  a  regular  payment  in  money. (/t) 

The  party  making  the  demand  should  have  the  bill  or  note 
with  him,  and  should  exhibit  it ;  because,  as  has  already  been 
seen,  the  payer  has  a  right  to  require  its  delivery  up  to  Iiim  be- 
fore ho  pays,  and  may  insist  that  the  holder  should  produce  it ; 
and  the  latter  must  be  in  a  condition  to  do  so  if  required. (/)  If 
his  ability  to  present  it  be  perfect,  and  it  is,  in  fact,  near  and  ac- 
cessible, it  may  not  be  absolutely  necessary  that  he  should  have 
it  in  his  immediate  personal  custody,  though  this  is  proper. (;«) 

(k)  Infra,  chapter  on  Payment  of  a  Bill  or  Note. 

(/)  Supra,  p.  230,  note  x.  In  Musson  v.  Lake,  4  How.  262,  it  was  held  that  a  pro- 
test, stating  only  that  payment  was  demanded,  is  inadmissible  to  prove  a  presentment, 
because  it  should  set  forth  that  the  notary  had  the  bills  in  his  possession  at  the  time ; 
Woodbury  and  McLean,  JJ.  dissenting,  on  the  ground  that,  as  a  notary  cannot  make  a 
legal  demand  without  presenting  the  bill,  it  is  a  fair  inference  that  he  had  it  with  him  at 
the  time  of  the  presentment.  Contra,  Nott  v.  Beard,  16  La.  308;  Deyraud  v.  Banks, 
id.  461.  In  Bank  of  Vergennes  v.  Cameron,  7  Barb.  143,  the  statement  in  the  protest 
was,  that  the  notary  went  with  the  draft  to  the  bank,  and  demanded  payment.  Held 
that  this  was  sufficient.  Harris,  J. :  "In  this  case  the  notary  states  that  he  went  with  the 
draft  to  the  bank  and  demanded  payment.  The  language,  I  think,  may  fairly  be 
deemed  equivalent  to  saying  that,  when  he  made  the  demand,  he  had  the  draft  with 
him,  and  was  prepared,  in  case  of  payment,  to  surrender  it  to  the  person  who  should 
honor  the  draft  on  behalf  of  the  acceptor.  So  far  therefore  as  it  i-elates  to  the  present- 
ment of  thp  draft  and  the  demand  of  payment,  I  am  inclined  to  hold  that  the  evi- 
dence furnished  by  the  notarial  certificate  is  sufficient."  In  Draper  v.  Clemens,  4 
Misso.  52,  a  demand  was  held  insufficient  because  it  did  not  appear  that  the  bill  wa.s 
produced.  In  Freeman  v.  Boynton,  7  Mass.  483,  it  appeared  that  the  party  demanding 
payment  did  not  have  the  bill  with  him.  Held  insufficient.  See  Smith  v.  Gibbs,  2 
Smedes  &  M.  479;  Farmers'  Bank  v.  Duvall,  7  Gill  &  J.  78. 

So  the  indorser,  upon  offi^ring  to  pay,  has  a  right  to  insist  on  the  delivery  of  the 
note  as  a  condition  of  such  payment ;  and  a  tender  of  the  amount  due  is  not  rendered 
invalid  by  being  made  on  such  a  condition,  contrary  to  the  general  rule  that  a  tender 
must  be  unconditional.     Wilder  v.  Seelye,  8  Barb.  408. 

(m)  In  Tredick  v.  Wendell,  1  N.  H.  80,  the  note  was  in  a  bank  within  a  few  rods 
of  the  maker's  house,  and  the  maker  was  informed,  by  a  letter  from  the  cashier,  where 
the  note  was,  and  requesting  payment.     Held  sufficient  to  charge  an  indorser. 


368  NOTES   AND    BILLS.  [CH.  XL 

If  ou  presentment  the  note  is  not  asked  for,  and  on  this  account 
it  is  not  actually  exliil)ited,  but  its  identity  is  perfectly  known 
to  the  party  on  whom  the  demand  is  made,  there  is  no  reason 
why  the  non-exhibition  of  it  should  vitiate  the  demand ;  (n)  and 
indeed,  the  better  rule,  as  drawn  from  the  autliorities,  would  seem 
to  be,  that  in  order  to  destroy  the  validity  of  the  demand,  on  the 
ground  that  the  note  was  not  exhibited,  the  maker  or  acceptor 
should,  cither  expressly  or  by  implication,  refuse  to  pay  on  that 
account ;  otherwise,  he  will  be  deemed  to  have  waived  his  right 
to  require  that  the  note  should  be  shown  to  him. 

If  the  note  or  bill  is  lost,  it  is  sufficient  if  the  demand  be  made 
with  a  presentment  of  a  true  copy  of  the  lost  paper ;  (o)  and 
where  it  is  necessary  to  tender  a  bond  of  indemnity  to  the  maker 
before  he  is  liable,  such  a  bond  should  also  be  presented. 

But  this  rule  respecting  the  necessity  of  presenting  the  note  is 
subject  to  other  exceptions.  Thus,  in  Massachusetts,  it  has  been 
the  custom  for  a  bank  which  becomes  the  holder  of  negotiable 
paper  to  issue  a  notice  to  the  promisor  a  few  days  before  matu- 
rity, informing  him  that  the  paper  is  in  the  bank,  setting  forth 
the  date  when  it  will  be  payable,  and  requesting  him  to  come 
there  and  pay  it.  It  is  distinctly  held  in  that  State,  that  such 
previous  notice  to  the  promisor,  with  neglect  on  his  part  to  pay 
the  note  at  the  bank,  constitutes  a  conventional  demand  and  re- 
fusal, which  amounts  to  a  dishonor  of  the  note,  and  that  it  is  not 
the  delivery  of  the  previous  notice  to  the  promisor  which  consti- 
tutes the  presentment,  but  that  it  is  the  failure  to  pay  at  the  bank, 
during  bank  hours  on  the  last  day  of  grace,  whicli  amounts  to 
dishonor. (/>)     Indeed,  this  custom  is  said  to  have  become  so  gcn- 


(h)  Lofkwoocl  V.  Crawford,  18  Conn.  361,  an  action  against  an  indorscr  of  a  note 
whic'ii  had  been  partially  paid  by  the  promisor.  Church,  C.  J.  :  "  It  is  true  that  it  docs 
not  directly  appear  that  the  payee  presented  the  note  in  form,  and  demanded  pay- 
ment ;  but  as  he  had  not,  at  that  time,  transferred  it,  the  makers  might  well  presume  it 
continued  in  liis  possession  ready  to  be  delivered  upon  payment.  When  called  upon 
for  the  balance,  tlicy  di<l  not  inquire  for  it,  nor  refuse  to  pay  l)ecanse  the  note  was  not 
shown  to  them  ;  on  the  contrary,  they  said  that  they  could  not  conveniently  pay  any 
mf)rc  then,  and  requested  the  payee  to  draw  upon  them  at  a  future  time;  thereby  waiv- 
ing, as  they  had  a  right  to  do,  a  more  formal  demand." 

(o)   Hinsdale  v.  Miles,  5  Conn.  3.31  ;  I'oscy  ;,•.  Decatur  Bank,  12  Ala.  802. 

(p)  Sh'iw,  C.  J.,  Mechanics'  Bank  v.  Merchants'  Bank,  6  Met.  13,  23.  The  point  was 
first  decided  in  Jones  v.  Fales,  4  Mass.  24.5,  where  the  note  was  not  made  payable  at  a 
bank,  but  the  defendant,  an  indorscr,  was  found  to  have  been  acquainted  with  the  usage, 
and  this  fact  Avas  held  to  be  admissible  evidence  of  an  agreement  on  his  part  to  be  bound 


CII.  XI.]  IN    WHAT    MANNER    DKMANI)    SHOULD    1!K    .MADE.  369 

oral  and  universal,  and  it  would  seem,  perhaps,  to  have  bccoma 
so  far  incorporated  into  the  general  law  of  that  State,  that  every 
one  who  incurs  the  liahiUty  of  maker  and  indorscr  may  be  suj)- 
posed  to  have  contracted  with  reference  to  it,  and  knowledge  on 
his  part  may  bo  presumed. (7)     p]vidonco  of  such  a  mode  of  de- 


thereby,  tliough  it  did  not  appear  that  he  had  ever  conformed  to  the  usage.  Widg- 
ery  v.  Munroe,  6  id.  449,  wiicre  the  defendant,  an  iiidonser,  liad  been  accustomed  to 
leave  his  notes  in  the  bank  for  collection,  and  had  conformed  to  the  usage.  Lincoln 
&  Kcnneheck  Bank  v.  Page,  9  id.  155  ;  Lincoln  &  Keiinelicck  Bank  v.  Haniinatt,  id. 
159,  in  which  cases  the  note  was  made  ])ayal)le  at  the  bank.  In  Weld  v.  Gorham,  10 
id.  .366,  the  note  was  not  payable  at  a  bank,  and  it  was  left  to  the  jury  to  find  whether 
the  maker  and  the  indorser,  the  defendant,  were  conversant  of  the  usage,  and  they 
were  directed,  that  the  fact  that  the  maker  and  indorser  were  directors  of  the  bank, 
and  the  long  continuance  of  the  custom,  were  presumptive  evidence  of  knowledge.  In 
Blanchard  v.  Hilliard,  II  id.  85,  the  defendant,  an  indorser,  was  proved  to  have  knowl- 
edge of  the  custom.  In  State  Bank  v.  Hurd,  12  id.  172,  the  note  was  payaltlc  at  a 
bank,  and  the  notice,  by  direction  of  the  maker  and  indorser,  was  left  at  a  store  of  a 
third  ]>arty.  In  Peircc  v.  Butler,  14  id.  30.3,  it  is  said  that  evidence  of  the  custom  is 
sufficient  to  bind  the  indorser,  if  he  had  been  conversant  of  the  usage.  In  Whitwell 
V.  Johnson,  17  Mass.  449,  the  note  was  not  payable  at  a  bank,  the  maker  knew  the 
custom,  but  tliere  was  no  evidence  that  the  defendant,  an  indorser,  was  acquainted  with 
it.  Held  sufficient.  Parker,  C.  J. :  "  If  the  indorscr  has  seasonable  notice  of  the  fact 
of  non-payment  when  the  note  is  due,  it  must  be  immaterial  to  him  in  what  form  the 
demand  upon  the  maker  was  made.  If  there  had  been  no  demand,  he  would  not  be 
liable,  because  it  does  not  appear  but  that  the  note  would  have  been  paid,  if  demanded ; 
and  it  is  within  the  terms  of  the  stipulation  that  such  demand  shall  be  made.  But  if 
there  has  been  such  a  demand  as  the  maker  was  bound  by,  so  that  he  had  no  right  to 
refuse  payment,  it  is  not  easj-  to  see  how  it  conccras  the  indorscr  whether  the  legal 
forms  have  been  complied  with,  or  waived  by  the  promisor.  The  case  of  State  Bank 
?».  Hurd,  12  Mass.  172,  was  decided  upon  this  principle,  and  the  only  difference  be- 
tween that  case  and  this  under  consideration  is,  that  in  that,  the  note  was  payable  at 
the  bank,  and  in  this,  it  was  not.  But  the  circumstance  was  not  essential,  as  it  would 
not  follow  that  Hurd,  the  indorser,  was  conversant  of  the  usage  of  the  bank  merely 
because  he  indorsed  a  note  payable  there."  These  decisions  are  affirmed  in  City  Bank 
V.  Cutter,  3  Pick.  414  ;  Boston  Bank  v.  Hodges,  9  id.  420  ;  North  Bank  v.  Abbot,  13 
id.  465  ;  Shove  v  Wiley,  18  id.  558,  where  the  evidence  of  knowledge  was  that  the  in- 
dorser was  frequently  at  the  bank  transacting  business,  and  frequently  paid  notes 
there  ;  Central  Bank  v.  Davis,  19  id  373  ;  Grand  Bank  v.  Blanchard,  23  id.  305. 

(7)  See  Grand  Bank  v.  Blanchard,  23  Pick.  305.  Shair,  C.  J.  said  :  "  But  the  cus- 
tom of  the  banks  of  Massachusetts  of  sending  a  notice  to  the  maker  of  a  note  to  come 
to  the  bank  and  pay  it,  and  treating  his  neglect  to  do  so  during  bank  hours  on  the  last 
day  of  grace  as  a  dishonor,  ....  has  become  so  universal,  and  continued  so  long,  that  it 
may  well  be  doubted  whether  it  ought  not  now  to  be  treated  as  one  of  those  customs  of 
merchants  of  which  the  law  will  take  notice,  so  that  every  man  who  is  sufficiently  a 
man  of  business  to  indorse  a  note  may  be  presumed  to  be  acquainted  with  it  and  as- 
sent to  it,  at  least  until  the  contrary  is  expressly  shown.  It  is  to  be  recollected  that  the 
rules  respecting  presentment,  demand,  and  dishonor  of  bills  of  exchange  and  promis- 
sory notes,  and  indeed  the  lex  mercatoria  generally,  originated  in  the  custom  of  mer- 
chants, which  custom  was  a  matter  of  fact  to  be  proved  by  the  party  relying  on  it,  and 

Vol.  I.— Y 


370  NOTES   AND    BILLS.  [CH.  XL 

maiid  may  be  given  in  support  of  an  averment  of  presentment  to 
the  maker,  (r) 

This  custom  has  also  been  sanctioned  by  judicial  decision  in 
Maine  ;  (s)  but  it  has  been  doubted,  perhaps,  in  Maryland, (z")  and 
in  Xew  Hampshire ;  {u)  at  least  the  courts  of  these  States  do  not 

to  be  determined  by  the  jury.  But  when  a  custom  has  been  definitely  settled  by  judi- 
cial decisions,  it  is  taken  notice  of  by  courts  as  part  of  the  law  of  the  land,  and  need 
not  be  proved  as  a  fact  in  each  case." 

(r)  City  Bank  v.  Cutter,  3  Pick.  414  ;  Boston  Bank  v.  Hodges,  9  id.  420;  North 
Bank  v.  Abbot,  13  id.  466,  where  Shaw,  C.  J-  said  :  "  The  principle  of  allowi.ng  some 
latitude  in  the  mode  of  proof,  where  a  presentment  and  demaml  are  averred  in  the  dec- 
laration, seems  to  be  this  :  the  plaintift'  does  not  give  in  evidence  matter  strictly  in  ex- 
cuse, but  a  qualified  ]iresentm(;nt  and  demand,  or  acts  which,  in  tlicir  legal  effect,  and 
by  the  custom  of  merchants,  are  deemed  equivalent  to  demand." 

(s)  Gallagher  v.  Roberts,  2  Fairf.  489  ;  Maine  Bank  v.  Smith,  18  Maine,  99. 

(t)  Farmers'  Bank  v.  Uuvall,  7  Gill  &  J  78.  One  of  the  head  notes  is  as  follows  : 
"  The  practice  of  banks  to  give  notice  to  the  makers  of  notes  of  the  time  of  their  matu- 
rity, and  place  of  deposit  for  collection,  cannot,  where  such  notice  has  been  delivered,  bo 
substitntcd  for  a  demand  of  payment  so  as  to  affect  the  indorser."  This  appears  to  be 
a  broader  statement  than  is  warranted  by  the  case.  All  that  is  decided  with  regard  to 
the  usage  is  that  the  evidence  in  the  case  did  not  prove  it. 

(u)  Moore  v.  Waitt,  13  N.  H.  415.  In  this  case,  the  drawer,  acceptor,  and  payee 
resided  in  different  towns.  When  the  payee  received  the  bill,  he  told  the  drawer  that 
he  should  get  the  bill  discounted  at  the  bank.  Instead  of  doing  this,  he  left  it  at  t!ie 
bank  for  collection.  The  custom  of  the  bank,  and  of  the  banks  of  several  adjoining 
towns,  was  given  in  evidence,  bul  it  did  not  appear  that  the  drawer  and  acceptor  knew 
of  the  custom.  The  suit  was  brought  against  the  drawer,  who  defended  on  the  ground 
that  there  had  not  been  a  sufficient  presentment.  Held,  a  good  defence.  Parker,  (\ 
J. :  "  It  ai)pears  that  the  bill  was  left  in  the  Framingham  Bank  for  collection ;  and  the 
j)laintiff  relies  upon  a  usage  of  that  bank  to  notify  the  acceptor  and  drawer  through  the 
mail,  on  the  last  day  of  grace,  as  an  excuse  for  a  neglect  to  present  the  bill  to  the 
acceptors  for  payment.  But  we  find  nothing  in  the  case  to  charge  the  defendant  upon 
any  usages  of  the  Framingham  Bank.  The  payee,  when  he  received  the  bill,  told  the 
defendant  that  he  should  get  it  discounted  at  that  bank.  This  he  did  not  do,  for  a  suffi- 
cient reason,  but  instead  thereof  left  it  in  the  bank  for  collection.  The  utmost  effect 
that  could  be  given  to  this  would  be  as  a  notice  to  the  defendant  that  the  bill  would  be 
in  that  bank  at  its  maturity.  Such  notice  would  in  no  w.ay  extend  or  vary  his  liability. 
The  bill  was  not  dr.awn  j)ayable  at  that  bank ;  nor  would  the  notice,  when  the  payee 
received  it,  that  it  would  be  left  there,  have  any  operation  to  bind  the  acceptors,  or  the 
defendant,  to  seek  it  .it  that  place.  Nor  could  the  notice  to  the  acceptors,  according  to 
the  custom  of  the  bank,  when  the  bill  became  due,  impose  any  greater  duty  iqion  them 
than  existed  when  they  first  accepted  the  bill,  or  charge  the  defendant  for  their  n<"glect 
to  make  payment  at  that  place.  It  does  not  appear  that  the  acceptors  had  any  notice 
that  the  bill  was  there  until  after  the  last  day  of  grace.  The  defendant  had  no  agency 
in  procuring  the  bill  to  be  left  there.  Nor  does  it  appear  that  he  had  any  knowledge  of 
the  usagt's  of  the  bank.  If  he  had  had  such  knowledge,  that  fact  would  not  have 
operated  as  a  waiver  of  his  right  to  require  that  a  demand  should  be  made  ujion  the  ac- 
ceptors, according  to  the  general  rules  of  the  law,  before  payment  was  sought  of  him' 

In  Leavitt  r.  Simes,  3  N.  H.  14,  liiclidrdsou,  C.  J  said  :  "  The  uvagc  of  the  banks 


CH.  XI.]  IN   WHAT    MANNER    DEMAND    SHOULD    BE   MADE.  371 

seem  disposed  to  give  it  such  effect  as  is  allowed  in  Massachu- 
setts. Even  in  Massachusetts  it  is  a  prevailing  and  very  general, 
if  not  universal  usage,  for  the  hanks  to  hand  the  dishonored 
note  to  a  notary  on  the  day  that  it  matures  and  remains  unpaid, 
and  the  notary  makes  the  same  demand  that  he  would  if  no  pre- 
vious notice  had  been  given. 

Another  exception  is,  when  the  maker  calls  ui)on  the  holder  at 
his  place  of  business  the  day  the  note  falls  due,  and  declares  his 
inability  to  pay  it,  and  requests  the  holder  to  give  notice  to  the 
indorser.  In  such  case  it  has  been  held  that  there  was  a  demand 
sufficient  to  bind  the  latter,  though  the  note  was  not  shown. (y) 
Tins  may,  however,  be  considered  rather  as  a  waiver  of  the 
maker's  right  to  insist  upon  its  exhibition. 

Another  exception  arises  in  the  case  of  notes  and  bills  payable 
at  a  specified  place.  Thus,  when  a  promisor  makes  a  note  paya- 
ble at  his  banker's,  and  the  banker  himself  becomes  the  holder 
of  the  note,  it  is  held  to  be  a  sufficient  presentment  to  charge 
an  indorser,  if  the  banker  turns  to  his  books  and  examines  the 
promisor's  account ;  and  a  sufficient  refusal,  to  find  that  there 
is  no  balance  due  the  latter  from  the  former,  (i^;)  It  will  also  be 
seen  hereafter,  that,  when  a  note  or  bill  is  payable  at  a  specified 
place,  it  is  sufficient  if  it  is  there  at  maturity,  ready  to  be  given 
up,  on  payment,  to  any  party  calling  for  and  authorized  to  pay 
it.(.'i;)  It  is  not  easy  to  see  how  a  sufficient  demand  can  be  made 
with  safety  through  the  post-office. (v/)     A  letter  addressed  to  the 


is  found,  but  it  is  not  found  that  the  defendant  (an  indorser)  had  ever  conformed  to  the 
us.a^re,  or  even  that  he  was  conusant  of  it.     There  is  then  nothing  from  which  his 

assent  to  waive  the  want  of  a  regular  demand  can  be  inferred We  are  of  opinion, 

that  it  is  not  enough  in  this  case  to  show  the  usage,  and  that  the  defendant  was  conusant 
of  it.  We  think  his  assent  to  the  usage  is  not  to  be  inferred  from  the  simple  fact  that  he 
had  knowledge  of  it.  If  it  can  be  shown  that  he  had  conformed  to  the  usage,  it  may 
deserve  consideration  whether  his  assent  to  it  might  not  be  inferred  from  his  conduct. 
On  tlie  other  hand,  it  will  deserve  very  serious  consideration,  whether  the  admission  of 
testimony  to  show  the  usage,  and  his  assent  to  it,  is  not  to  admit  parol  evidence  to 
vary  the  terms  of  a  written  contract." 

(v)  Gilbert  v.  Dennis,  3  Met.  49.5. 

{w)  Saunderson  v.  Judge,  2  H.  Bl.  509. 

(x)   Jnfra,  p.  434. 

(y)  In  the  following  cases  such  a  demand  was  held  insufficient.  Halle  v.  Howell, 
Harper,  426  ;  Gillespie  v.  Hanuahan,  4  McCord,  503  ;  Stuckert  v.  Anderson,  3  Whart. 
116.  In  Duke  of  Norfolk  v.  Howard,  2  Show.  235,  an  action  by  the  payee  against  the 
maker  of  a  note  payable  within  three  months  after  the  plaintiff  should  demand  the 
same,  the  plaintiff's  attorney  "delivered  a  demand  in  writing  at  the  defendant's 
house  to  his  maid,  by  whom  he  sent  it  up  to  the  defendant,  he  being  sick  and  not 


3712  NOTES   AND   BILLS.  [CH.  XI. 

maker  'it  his  residence,  stating  that  the  note  is  due  and  unpaid, 
and  demanding  payment,  even  if  it  add  the  place  of  the  note, 
would  seem,  on  general  principles,  not  to  be  a  good  demand,  un- 
less there  were  some  usage  justifying  it.  If  the  note  were  en- 
closed in  the  letter,  and  an  immediate  return  made  of  the  note, 
with  an  answer  of  refusal,  this  might  hold  the  subsequent  parties. 
But  if  the  payee  returned  the  note,  and  made  no  answer,  or  even 
retained  it  and  refused,  we  should  doubt  whether  any  notice  to 
subsequent  parties  could  be  predicated  on  such  a  refusal  which 
would  be  sufficient  to  hold  them. 

A  demand  on  the  maker  in  the  street  is  not,  in  general,  suffi- 
cient ;  but  it  may  be  doubted  whether  it  will  not  suffice  to  bind 
an  indorser,  unless  objection  be  made  to  the  place ;  or  at  least 
slight  acts  on  the  part  of  the  maker  would,  we  think,  be  con- 
strued as  a  waiver  of  his  right  to  object  on  that  account. (s)  It 
has  been  held,  that  a  demand  on  the  maker  by  a  sheriff  serving  a 
writ  upon  him,  is  not  a  demand  upon  which  notice  to  an  indorser 
can  be  founded  ;  (a)  though  it  will  certainly  be  sufficient  if  the 
sheriff  have  the  note  in  one  hand  and  tlie  writ  in  the  other,  and 
if,  on  refusal  to  pay  the  note,  the  sheriff  immediately  serve  the 
writ.  (6) 

to  be  spoken  with ;  the  maid  brought  down  word  she  had  delivered  it  to  her  master. 
Held,  no  good  evidence  to  maintain  the  action,  for  the  demand  ought  to  he  personal ; 
and  delivery  of  a  demand  in  writing  to  the  servant  at  the  house  is  no  good  demand." 
Sed  qucEre. 

(z)  King  V.  HolmeSj  11  Penn.  State,  4.'j6.  Rof/ers,  J.  said  :  "  The  court  correctly  in- 
structed the  jury,  that  a  demand  in  the  street  of  an  acceptor  of  a  bill  of  exchange  is  not  a 
sufficient  demand.  That  when  a  bill  is  payable  generally,  and  not  at  a  particular  place, 
the  demand  must  be  at  the  place  of  business  of  the  acceptor.  But  if  the  notary,  on  his 
way  to  the  place  of  business  of  the  acceptor,  meets  him  in  the  street,  and  informs  him 
of  his  bu.siness,  and  where  he  is  going,  and  the  acceptor  offers,  if  he  will  go  to  his 
place  of  business,  to  give  him  only  a  check  on  a  broker,  it  is  not  necessary  for  the 
notary  to  proceed  further.  The  demand  at  the  place  of  business  is  waived  by  the 
]iayor  or  acceptor.  It  is,  in  effect,  a  refusal  to  pay,  for  an  offer  to  pay  by  a  check  on  a 
broker,  in  legal  contemplation,  is  nothing;  it  is  not  such  a  tender  as  the  notary  would 
be  justified  in  accepting.  In  this  case  the  accc])tor  had  no  cause  of  complaint  ;  for  the 
notary  offered  to  receive  a  check  on  one  of  the  banks  in  payment  of  the  bill."  Sec  Fall 
Kiver  Union  Bank  v.  Willard,  5  Met.  216,  cited  sujira,  page  348,  note  ;/. 

('/)  Branch  Bank  v.  Gaffney,  9  Ala.  15.3.  It  does  not  appear  in  the  case  whether 
the  officer  had  the  note  with  him  or  not,  but  the  reason  stated  by  Collier,  C.  J.  is  :  "  The 
writ  or  summons  i)y  which  a  suit  is  commenced  docs  not  invest  the  officer  to  whom  it 
IS  addressed  with  authority  to  receive  the  money.  It  is  not,  in  form,  a  request  to  pay 
it,  nor  docs  it  suppose  that  the  defendant  therein  will  pay  it,  otherwise  than  by  legal 
coercion."  If  the  rc.ison  was  that  the  sheriff  did  not  have  the  note  with  him,  the  case 
is  sound  ;  otherwise,  it  would  seem  that  the  decision  could  nut  be  sustained. 

{b)  Seuver  u.  Lincoln,  21  Tick.  267.     Sec  the  cases  cited  supra,  p.  359,  note  e 


CU.  XI.]  AT    WHAT    TIME   DEMAND   SHOULD    BE   MADE.  378 

SECTION    Y. 

AT   WHAT   TIME   DEMAND   SHOULD   BE  MADE. 

As  to  the  time  when  demand  should  be  made,  the  rule  is,  that 
in  order  to  charge  a  drawer  or  indorscr,  it  must  be  made  on  the 
day  of  the  maturity  of  the  note  or  bill.(c)     If  made  before, (^/) 


(c)  "  The  general  rule  is,  that  it  must  be  presented  on  the  very  day  on  which,  by 
law,  it  becomes  due  ;  and  that,  unless  the  presentment  be  so  made,  it  is  a  fatal  objec- 
tion to  any  right  of  recovery  against  the  indorscr.  But  although  this  is  the  general 
rule,  it  is  not  a  universal  one,  and  prevails  only  under  the  qualification,  which  is  really  a 
part  of  the  rule  itself,  that  there  is  no  negligence  or  want  of  reasonable  diligence  in 
not  making  such  presentment.  The  whole  rule,  therefore,  more  properly  stated,  is,  that 
presentment  must  be  on  the  day  on  which  tlic  bill  becomes  due,  unless  it  is  not  in  the 
power  of  the  holder,  by  the  use  of  reiu-^onable  diligence,  so  to  present  it."  Sioirs,  J., 
Windliam  Bank  v.  Norton,  22  Conn.  213.  "  A  demand  upon  the  maker  of  a  note,  in 
order  to  charge  an  indorser,  must  not  only  be  made,  but  it  must  be  satisfactorily  proved 
to  have  been  made,  on  the  day  when  the  note  falls  due,  provided  there  be  no  circum- 
stances dispensing  with  tlie  necessity  of  such  demand The  witness  relied  upon 

to  prove  the  time  of  the  demand,  is  unable  to  state  it.  The  writing  which  he  signed, 
without  date,  affords  him  no  aid  by  which  he  could  be  enabled  to  fix  the  time."  Whit- 
man, C.  J.,  Kobinson  v.  Blen,  20  Maine,  109.  In  this  case  a  declaration  by  the  holder 
to  the  indorser,  that  he  had  called  on  the  maker  the  day  the  note  became  due,  and  that 
the  maker  refused,  and  the  fact  that  the  indorser  did  not  deny  it,  were  relied  on  as  evi- 
dence to  prove  a  demand  at  maturity.  But  the  last  facts  were  held  to  be  no  evidence, 
and  the  demand  not  satisfactorily  proved. 

((/)  Brown  v.  Harraden,  4  T.  R.  148  ;  WifTcn  v.  Roberts,  1  Esp.  261  ;  Henry  v. 
Jones,  8  Mass.  453  ;  Leavitt  v.  Simes,  3  N.  H.  14  ;  Howe  v.  Bradley,  19  Maine,  31  ; 
Jackson  v.  Newton,  8  Watts,  401  ;  Farmers'  Bank  v.  Duvall,  7  Gill  &  J.  78  ;  Edgar  v. 
Greer,  8  Clarke,  la.  394.  In  Griffin  v.  Goff,  12  Johns.  423,  Spencer,  J.  said  :  "  In  the 
present  case  the  demand  of  payment,  being  made  at  the  house  of  the  drawer  before  the 
note  was  payable,  is  as  no  demand  ;  it  was  a  perfectly  nugatory  act ;  payment  might 
have  been  demanded  with  as  much  propriety  on  the  day  the  note  was  given."  One  of 
the  chief  objections  which  have  been  urged  against  the  usage  spoken  of  above,  as  ex- 
isting in  Ma-ssachusetts  with  reference  to  demand,  has  been,  that  the  notice  is  sent  out 
prior  to  maturity.  But  the  demand  is  not  considered  as  made  at  the  time  when  the 
notice  is  given.  See  the  remarks  of  Shaw,  C.  J.,  cited  supra,  p.  369,  note  q,  and  the 
same  eminent  judge,  speaking  of  this  usage,  says,  in  Mechanics'  Bank  v.  Merchants' 
Bank,  6  Met.  13  :  "Undoubtedly  parties  to  negotiable  notes  may  waive  demand  and 
notice,  and,  as  a  modification  of  that  power,  may  agree  to  qualified  modes  of  demand 
and' notice  ;  and  a  compliance  on  the  part  of  the  holders  with  such  qualified  modes  will 
be  sufficient  to  bind  the  indorsers.  But  we  are  not  aware  of  a  case  in  which,  under  such 
Agreement,  express  or  tacit,  in  regard  to  the  mode  of  presentment,  demand,  and  notice, 
the  time  of  payment  can  be  accelerated,  or,  where  any  notice  to  indorsers  is  required, 
that  such  notice  can  be  given  before  the  actual  dishonor  of  the  note.  Any  agreement 
"vhich  would  accelerate  the  time  of  legal  payment  would  be  a  change  of  the  contract. 

VOL    I  32 


874  NOTES   AND  BILLS.  [CH.  XI. 

or  'xher  .(p.)  it  is  insufficient  for  that  purpose,  except  where  the 
demand  is  made  subsequent  to  that  time,  under  circumstances 
which  the  law  recognizes  as  a  valid  excuse  for  a  delay  in  making 
the  demand.  (/) 

The  liability  of  the  maker  or  acceptor  is  unaffected  by  the 
question  whether  the  demand  was  made  after  the  day  of  matu- 
rity or  not.  A  demand  before  the  note  or  bill  falls  due  is  una- 
vailing,(jg')  but  a  demand  on  either  of  them  at  any  time  subse- 
quent to  that  date,  provided  it  be  witliin  the  period  recognized  by 
the  Statute  of  Limitations,  is  sufficient. (/i) 

If  a  note  is  payable  by  instalments,  there  should  be  a  demand 
of  each  instalment  when  it  falls  due.(z)  But  neglect  of  demand 
or  notice  on  any  one  instalment  would,  as  we  think,  discharge 
the  indorser  for  that  instalment,  and  only  for  that.  If  a  note 
is  payable  by  instalments,  with  the  condition  that,  in  default  of 
payment  of  any  one,  the  whole  amount  of  the  note  shall  become 
due,  it  would  seem  that,  in  order  to  hold  the  indorser  for  the 
amount  of  the  bill  unpaid,  demand  should  be  made  for  that 
amount,  on  default  of  payment  of  any  one  instalment ;  and  it 
might  be  held,  perhaps,  that  a  neglect  to  demand  any  instalment 
would  discharge  an  indorser,  both  for  that  and  all  subsequent 
ones ;  {j)  we  should  have,  however,  some  doubt  as  to  this.  If  a 
note  or  bill  is  payable  on  demand,  it  is  always  mature,  and  may 
at  any  time  be  demanded.  As  between  the  maker  and  the 
holder,  so  far  as  maintaining  an  action  on  the  note  is  concei'Jied, 

and  must  be  made  in  such  form  and  on  sucli  consideration  as  would  be  suflicient  to 
constitute  a  substantive  contract." 

(e)  Niciioison  v.  Gouthit,  2  H.  Bl.  G09  ;  Woodbridge  v.  Brigham,  12  Mass.  403  ; 
Piatt  r.  Eads,  1  Blackf.  81  ;  Fulton  Co.  ;;.  Wriglit,  12  La.  38G  ;  Grant  v.  Long,  id. 
402  ;  iMcMurchey  v.  Robinson,  10  Ohio,  496  ;  Eklridge  v.  Rogers,  Minor,  392. 

(/)  As  to  what  is  a  sufficient  excuse,  see  infra,  j)p.  442-465. 

(7)   Supra,  p.  373,  note  d. 

(h)  Anderson  v.  Cleveland,  cited  13  East,  430,  note  c. 

(?)  In  Oridge  v.  Sherborne,  11  M.  &  W.  374,  the  defendant,  an  indorser  of  a  note 
payable  in  seven  instalments,  in  an  action  against  him  for  the  fourtli  instalment,  ob- 
jected that  the  presentment  to  the  maker  had  been  three  days  too  late,  grace  having 
been  allowed.  It  was  held  that  such  a  note  was  within  the  Stat.  3  &  4  Anne,  c.  9, 
and  that  the  presentment  was  in  time ;  consequently  the  indorser  was  held.  The  im- 
plicatif)!!  from  this  case  is,  that,  if  presentment  liad  been  made  cither  before  or  after  that 
instiihnciit  fell  due,  the  indorser  would  have  been  discharged.  It  will  be  seen  hereafter, 
that  assumjjsit  will  lie  by  an  indonsce  for  each  instalment  as  it  falls  d.ic,  while  debt  will 
not. 

(;■)  Sec  Carlon  r.  Kcnealy,  12  M.  &  W.  139. 


CH.  XI.]  AT    WHAT    TIME   DEMAND    SHOULD   BE   MADE.  37A 

no  other  demand  than  serving  the  writ  is  necessary  ;  {k)  nor 
need  any  demand  be  averred  in  the  declaration  ;  (l)  nor,  if  it  be 
averred,  need  it  be  proved. (??i)  But  if  the  note  is  payable  on 
demand,  it  may  bo  necessary  for  iho  holder,  if  he  wishes  to  charge 
the  maker  with  interest  from  any  date  prior  to  that  of  the  writ,  to 
prove  a  demand  at  that  date.(w)  So  far  as  the  Statute  of  Limi- 
tations is  concerned,  the  cause  of  action  is  considered  to  have 
accrued  at  the  time  of  the  date  of  a  bill  or  note  on  demand,  and 
tlie  statute  commences  to  run  from  that  time.(o) 

The  question  as  to  the  time  witliin  which  a  note  or  bill  on  de- 
mand must  be  presented,  in  order  to  affect  other  parties  by  its 
dishonor,  depends  upon  the  time  when  it  is  to  be  considered  as 
overdue.  Hence  arise  two  classes  of  cases  with  reference  to  this 
point.  One,  where  the  note  or  bill  is  overdue  when  payment 
is  demanded,  and  therefore  the  indorser  or  drawer  is  discharged. 
In  this  case,  in  order  to  determine  the  question  as  to  the  liability 
of  an  indorser  or  a  drawer,  an  examination  is  necessary  into  the 
fact  whether  presentment  is  made  at  a  time  when  the  note  or  bill 
became  mature,  or  subsequent  to  that  time.{p) 

The  other  class  of  cases  relates  to  the  question  whether,  at  tho 
time  when  the  note  is  transferred  to  a  third  party  by  indorsement 
or  otherwise,  such  a  time  has  not  elapsed  from  the  date  of  the 


{Ic)  Rumball  v.  Ball,  10  Mod.  38;  Biirnliam  v.  Allen,  1  Gray,  496.  "As  it  respects 
the  promii^or  himself,  he  is  answerable  immediately  to  the  promisee  or  indorsee  ;  and  he 
may  be  sued  the  instant  he  has  given  his  signature,  even  without  a  previous  demand." 
Parker,  C.  J ,  Field  v.  Nickerson,  1.3  Mass.  131  ;  Dougerty  v.  Western  Bank,  13  Ga. 
287  ;   Woodward  v.  Drennan,  3  Brev.  189  :  Gammer  ?;.  Harrison,  2  McCord,  246. 

(/)  Kumball  v.  Ball,  10- Mod.  38.  "An  action  of  debt  upon  a  note  to  this  effect :  '  I 
acknowledge  myself  indebted,  &c.,  which  I  promise  to  pay  upon  demand.'  It  was  moved, 
in  arrest  of  judgment,  that,  though  upon  a  note  acknowledging  a  debt  it  was  not  ne- 
cessary to  allege  a  demand,  yet,  where  it  is  part  of  the  agreement,  there  a  demand  ia 
necessary.  But  the  court  was  of  another  opinion,  for  it  is  a  debt  in  presenti,  and  the 
words  '  promise  to  pay  '  import  no  more  than  that  I  am  ready  to  pay  the  money  at  any 
time,  and  shall  not  restrain  or  qualify  the  other  words,  this  being  no  debt  arising  upon 
the  performance  of  a  certain  condition,  but  a  debt  plainly  precedent  to  the  demand. 
Besides,  supposing  a  demtind  necessary,  the  action  itself,  perhaps,  is  a  demand." 

(/«)  Burniiam  v.  Allen,  1  Gray,  496. 

(n)  Burnham  v.  Allen,  1  Gray,  496,  499.     See  infra,  chapter  on  Interest. 

(o)  Norton  v.  Ellam,  2  M.  &  W.  461  ;  Woodward  i-.  Drennan,  3  Brev.  189;  Gam- 
mer V.  Harrison,  2  McCord,  246 ;  Smith  v.  Bythewood,  Rice,  245  ;  Kuff  v.  Bull,  7  Har- 
-\s  &  J.  14.     Infra,  Vol.  II.  p.  642. 

{//)   Field  V.  Nickerson,  13  Mass.  131,  Parker,  C.  J. ;  and  cases  infra. 


37(3  NOTES   AND    BILLS.  [CH.  XL 

noie  that  it  must  be  considered  as  overdue,  and  consequently  the 
maker  is  entitled  to  equitable  defences,  of  which  he  would  be  de- 
prived had  it  not  been  transferred  before  it  was  due.(</) 

The  law  with  regard  to  reasonableness  of  time  would  appear 
to  be  the  same  in  both  classes  of  cases,  and  is  so  held  in  the 
United  States  ;  (r)  at  least,  we  are  not  aware  of  a  case  in  this 
country  where  a  distinction  has  been  taken  in  that  respect.  But 
it  has  been  held  in  England,  that  a  note  on  demand  is  not  to  be 
considered  as  overdue  so  as  to  let  in  these  equities  by  the  mere 
lapse  of  time.(s) 

(q)  See  sujira,  p.  2G4,  note  y. 

(r)  In  Field  v.  Nickcrson,  13  Mass.  131,  the  two  classes  were  ])laccd  on  the  same 
footing  hy  Parker,  C.  J.     So  in  Siee  v.  Cunnin<^ham,  1  Cowen,  397. 

(s)  There  was  an  early  case,  Banks  v.  Colwell,  cited  3  T.  R.  81,  wiicrc  Buller,  J. 
allowed  the  defendant  to  prove  that  the  note  was  indorsed  to  the  plaintiff"  a  year  and  a 
half  after  date,  and  also  to  impeach  the  consideration  ;  and  the  plaintitl"  was  nonsuited. 
But  in  Barou-;h  v.  White,  4  B.  &  C.  325,  where  the  question  was  with  regard  to  the  admis- 
sion of  evidence  tending  to  sustain  a  want  of  consideration,  the  note  was  payable  with 
interest,  and  the  length  of  time  that  had  elapsed  docs  not  appear.  Buyhi/,  J.,  referring 
to  the  ease  of  Banks  v.  Colwell,  said:  "  We  are  not,  however,  acquainted  with  all  the 
circumstances  of  that  case ;  payment  might  have  been  demanded  before  the  indorse- 
ment, and  indeed  it  is  stated  that  several  payments  had  been  made  on  account."  But 
these  criticisms  arc  hardly  just.  The  case  was  clearly  stated  in  the  argument  ;  was  ap- 
proved by  Ashhurst,  J.,  without  any  objection  as  to  the  fact  that  the  note  was  not  overdue  ; 
and  as  Buller,  J.  was  himself  on  the  bench  at  the  time  it  was  cited,  he  would  surely  have 
corrected  it  had  it  been  misstated,  and  the  case,  having  been  decided  only  about  nine 
months  before,  must  have  been  fresh  in  his  recollection.  It  will  be  seen  also  that 
Brown  r.  Davies,  3  T.  11.  80,  appears  to  have  been  decided  on  the  authority  of  Banks 
V.  Colwell.  As  to  the  fact  "  that  payment  might  have  been  demanded  before  the  iu- 
dorsement,"  that  would  have  been  immaterial  had  the  note  not  been  overdue,  because 
it  is  stated  that  "  no  privity  was  brought  home  to  the  plaintiff"  ;  as  it  is  clear  that  a 
note  indorsed  over  by  the  payee,  after  an  insufficient  demand,  but  before  maturity,  to 
a  third  party  without  knowledge  of  the  fact,  is  a  valid  note  in  the  hands  of  the  latter. 
The  same  will  apply  to  the  fact,  "  that  several  payments  had  been  made  on  ac- 
count." Bai/let/,  J.  laid  some  stress  on  the  fact,  that  the  note  was  payable  with  in- 
terest. Ilohoyd  and  Lillledale,  JJ.  said  nothing  about  this  in  tlie  rei)ort  in  4  B.  &  C. 
32.5,  but  mention  it  in  6  Dow.  &  K.  379  In  Brooks  v.  Mitchell,  9  M  &  W.  1.5,  the 
note,  ])ayable  with  interest,  was  dated  Dec.  24,  1824,  indorsed  fn-st  in  March  12,  1836, 
and  again  to  the  defendant  on  Jan.  IG,  1838.  This  was  an  action  of  trover  by  the 
assignees  of  the  first  indorser,  who  contended,  inasmuch  as  the  note  was  overdue  at  the 
time  of  the  first  indorsement,  that  they  could  prove  that  the  indorser  had  no  right  to 
transfer  it.  No  interest  had  been  paid  or  demanded  for  four  years.  Hut  Piirke,  B. 
said:  "  I  cannot  assent  to  the  arguments  urged  on  behalf  of  the  jWaintifVs.  If  a  pro- 
missory note,  payable  on  demand,  is,  after  a  certain  time,  to  be  treated  as  overdue, 
although  i)ayincnt  has  not  been  demanded,  it  is  no  longer  a  negotiable  instrument. 
But  a  |tromis>ory  note  payable  on  demand  is  intended  to  be  a  continuing  security." 
There  do  not  appear  to  have  been  any  decisions  in  ICngland  with  reference  to  the  first 
class  of  cases.     A  (juestion  has  arisen  with  reference  to  drafts  on  a  baidier  inc*  ^cld- 


en.  XI.]  AT   WHAT    TIME   DEMAND    SHOULD   BE   MADE.  377 

The  rule  on  this  point  would  also  seem  to  be  the  same  as  that 
with  reference  to  presentment  for  acceptance  of  bills  payable  after 
sight,(^)  which  we  have  already  considered. (m)  This  rule  is,  that 
presentment  must  be  made  within  a  reasonable  time  after  the  in- 
dorsement in  the  case  of  bills,  and  after  making  in  the  case  of 
notes,  and  that  what  constitutes  such  reasonableness  of  time  can- 
not be  determined  by  any  fixed  and  exact  rules,  but  must  depend 
upon  the  particular  circumstances  of  each  case.(z;)  In  all  these 
cases,  whether  the  question  is  one  for  the  court  or  the  jury  to  de- 
termine is  perhaps  unsettled ;  (w)  the  prevailing  doctrine  being, 


smith's  notes,  where  they  have  been  taken  in  payment,  and  the  drawer  has  failed  while 
the  payee  had  them  in  his  possession.  Tiiis  will  be  treated  subsequently.  See  infra, 
chapters  on  Payment  aivd  Checks.  Chitty,  p.  252,  10th  ed.,  London,  says  that  they 
"  must  be  presented  within  a  reasonable  time  after  they  have  been  received  "  ;  and  a^^ain, 
p.  261 :  "  Instruments  wiiich  are  expressed  to  be  j)ayablc  on  demand,  as  in  the  ease  of 
bankers'  notes  and  cheeks,  are  payable  instantly  on  presentment,  and  such  instruments 
must  be  presented  for  payment  within  a  reasonable  time  after  the  receipt  of  them,  usu- 
ally the  next  day."  Byles.  p.  123,  says:  "Bills  and  notes  payable  on  demand,  and 
checks,  must  be  presented  within  a  reasonable  time"  ;  —  and  on  p.  164  :  "  It  is  con- 
ceived that  a  common  bill  of  exchange  ought,  if  the  parties  live  in  the  same  place,  to  be 
presented  the  next  day  after  the  payee  has  received  it."  This  is  hardly  consistent  with 
the  remarks  of  the  judges  in  the  cases  cited  sitpj-a,  who  almost  all  speak  of  a  note  on  de- 
mand as  intended  to  be  "a  continuing  security."  No  cases  are  cited  in  support  of  the 
proposition,  and  those  from  which  the  opinion  seems  to  have  been  formed  are  the  cases 
of  checks  and  banker's  notes,  where  the  drawer  has  failed,  and  the  question  has  been, 
whether  a  party  who  received  them  in  payment,  or  the  party  giving  them  as  payment, 
should  bear  the  loss  ;  which  is  obviously  a  different  question. 

(t)  Sue  Field  v.  Nickenson,  13  Mass.  131  ;  Thurston  v.  M'Kown,  6  id.  428  ;  Aymar 
I'.  Beers,  7  Cowen,  705  ;  Brenzer  v.  Wightman,  7  Watts  &  S.  264. 

(u)  Siiiirn,  p.  338,  note  c. 

(v)  Field  ('.  Nickcrson,  13  Mass.  131  ;  Sylvester  v.  Crapo,  15  Pick.  92  ;  Ranger  v, 
(Jary,  1  Met.  369  ;  Lo.see  v.  Dunkin,  7  Johns.  70  ;  Vreeland  v.  Hyde,  2  Hall,  429  ;  Bunk 
of  Utic.i  e'.  Smedes,  3  Cowen,  662;  Castle  v.  Candee,  16  Conn.  223;  Lockwood  v. 
Crawford,  18  id  361  ;  Emerson  v.  Crocker,  5  N.  H.  159  ;  Carlton  v.  Bailey,  7  F"oster, 
•2.30;  Cromwell  v.  Arrott,  1  S.  &  R.  180;  M'Kinney  ?;.  Crawford,  8  id.  351  ;  Bren- 
zer V.  Wightman,  7  Watts  &  S.  264  ;  Martin  v.  Winslow,  2  Mason,  241.  In  Seaver  v. 
Lincoln,  21  Pick.  267,  S/iaw,  C.  J.  said  :  "  One  of  the  most  difficult  questions  presented 
for  the  decision  of  a  court  of  law  is,  what  shall  be  deemed  a  reasonable  time  within 
which  to  demand  payment  of  the  maker  of  a  note  payable  on  demand,  in  order  to 
charge  the  indorser.  It  depends  upon  so  many  circumstances  to  determine  what  is  rea- 
sonable time  in  a  particular  case,  that  one  decision  goes  but  little  way  in  establishing 
a  precedent  for  another." 

{w)  In  Field  i,-.  Nickcrson,  13  Mass.  131,  the  question  seems  to  have  been  decided 
by  the  jury.  Parker,  C.  J. :  "  Was  this  demand  made  in  a  reasonable  time  ?  The 
jury  have  said,  No  ;  and  they  were  perfectly  justified  in  returning  that  answer."  In 
Manwariujj'  v.  Harrison,  1  Stra.  507,  the  case  arose  on  a  goldsmith's  note,  whether  a 
payor  or  a  payee  should  bear  the  loss.  Pratt,  C.  J.  "told  the  jury  that  giving  the  note 
32* 


3T8  NOTES   AND   BILLS.  [CH.  XI. 

that,  where  there  is  no  dispute  about  the  facts,  the  court  will  de- 
cide it;(a;)  and  where  the  facts  are  not  agreed  upon,  it  is  a 
mixed  question  of  law  and  fact,  and  the  court  will  instruct  the 


is  not  immediate  payment,  unless  the  receiver  does  something  to  make  it  so,  by  neglect- 
ing to  receive  it  in  a  reasonable  time He  left  it  to  them  whetlier  there  had  been 

any  neglect,  and  observed  that  the  note  was  payable  to  the  defendant,  wlio  had  kept 
it  eleven  days,  and  probably  would  not  liave  demanded  it  sooner  than  the  plaintitf  did, 
it  appearing  the  goldsmiths  were  in  full  credit  all  the  while.  The  jury  desired  they 
might  find  it  specially,  and  leave  it  to  the  court  whether  there  was  a  reasonable  time, 
but  the  Chief  Justice  told  them  they  were  judges  of  that ;  whereupon  they  found  for 
the  defendant;  and  declared  it  as  their  opinion,  that  a  person  who  did  not  demand  a 
goldsmith's  note  in  two  days  took  the  credit  on  himself"  In  Hankey  r.  Trotman,  I 
W.  Bl.  1,  a  case  on  a  check,  the  question  was  left  to  the  jury.  In  Lancaster  Bank  r. 
Woodward,  18  Pcnn.  State,  357,  362,  a  check  case.  Woodward,  J.  said  that,  as  to  what 
is  reasonable  time,  "  Other  authorities  treat  it  as  a  question  of  fact,  and  this  is  periiaps 
the  better  opinion  as  to  ordinary  cases ;  but  the  delay  in  this  case  was  so  great,  and 
the  conduct  of  the  bank  was  so  grossly  negligent  entirely,  that  wc  think  the  learned 
judge  was  right  in  giving  the  jury  the  instructions  he  did." 

In  Gray  v.  Bell,  2  Rich.  67,  3  id.  71,  reasonable  time  in  making  a  demand  of  a  nolo 
indorsed  when  overdue  was  held  always  to  be  a  question  of  fact  for  a  jury.  See  also 
Chadwick  v.  Jeffers,  1  id.  397  ;  Brock  v.  Thompson,  1  Bailey,  322 ;  Benton  v.  Gibson, 

1  Hill,  S.  Car.  56  ;  Eccles  v.  Ballard,  2  McCord,  388  ;  Hall  v.  Smith,  1  Bay,  330 ; 
Branch  Bank  v.  GatTuey,  9  Ala.  153.  In  Sice  v.  Cunningham,  1  Cowen,  397,  it  seems 
to  have  been  treated  as  a  matter  of  law.  The  judge  told  the  jury,  that  "  lie  had  no  doubt 
that  five  months  and  a  half,  the  time  given  on  this  note,  was  an  unreasonable  length  of 
time,"  but  he  told  them  to  consider  this  in  connection  with  the  other  facts  in  the  case, 
&c.  The  charge  was  held  incorrect.  In  Ranger  v.  Cary,  1  Met.  369,  the  judge  charged 
the  jury,  that  unless  the  note  had  been  transferred  at  least  one  month  from  date,  it  could 
not  be  considered  as  overdue.  Held  correct.  In  Sylvester  r.  Crapo,  15  Pick.  92, 
Shaw,  C.  J.  said  :  "  What  is  reasonable  time  is  a  question  of  law  upon  the  facts 
proved."  Byles  (p.  163)  says,  it  "seems  to  be  a  question  of  law."  The  cases  cited 
were  decided  with  respect  to  reasonableness  of  tinie  in  giving  notice,  but  it  is  con- 
ceived that  there  may  well  be  a  difference  in  the  law  between  the  two  classes  of 
cases.  See  infra.  TJie  cases  of  Medcalf  r.  Hall,  3  Doug.  113,  and  Appleton  v. 
Sweetapple,  id.  137,  arose  on  the  question  whetlier  the  payee  made  a  banker's  note 
received  in  payment  his  own,  by  not  ])resenting  in  sufficient  time.  The  payee  did  not 
present  it  till  after  banking  liours  on  the  same  day  he  received  it.  Bullcr,  J.  thought 
there  should  be  some  general  rule  in  sucli  cases,  and  it  should  be  that  iircst'ntnient  was 
sufficient  if  made  the  next  day.  Lord  j\fansjjeld  thought  "  the  next  ilay  should  be  the  rule 
if  it  stood  clear  of  any  usage,  but  he  thought  that  clear  usage  might  vary  the  rule."  In 
these  cases  there  appears  to  have  been  a  struggle  between  the  court  and  the  jury.  The 
jury  f(jund  for  the  defendant  five  times,  and  on  a  motion  for  a  sixth  trial,  tlie  plaintiff 
was  refused,  on  the  ground  that  he  ought  to  have  objected  to  the  introduction  of  evi- 
dence as  to  a  usage  to  present  the  same  day.  Cliitty,  Bills,  p.  262,  10th  ed.,  London, 
says  it  is  now  settled  to  l)e,  in  general,  a  question  of  law.  But  the  cases  cited  are 
mostly  on  the  question  of  notice,  and  the  others  do  not  support  tlic  proposition.  See 
suprn,  chap.  8,  p.  268,  note  h. 

(r)  Supra,  p.  269,  note  i.     Furinan  r.  Haskin,  2  Caincs,  369;  Vrccland  v.  Ilyde, 

2  Hall,  429  ;  Kiting  v.  Brinkerhoff,  id.  459. 


CH.  XI.]  AT    WHAT    TIME   DExMAND    SHOULD   BE   MADE.  379 

jury  as  the  circumstances  of  each  case  require,  and  the  jury  will 
determine  the  whole  question. (y) 

One  of  the  circumstances  which  have  been  considered  as  hav- 
ing an  important  bearing  upon  this  question  is,  the  fact  that  the 
note  is  payable  with  interest ;  the  reason  being,  that  neither  the 
parties  to  it  nor  the  indorser  contemplated  an  immediate  demand, 
but  all  looked  to  the  real  time  of  payment  as  intended  to  be 
future,  and  to  the  indorsement  as  a  continuing  guaranty. (s) 

Whether  evidence  is  admissible  of  an  agreement  or  understand- 
ing between  all  the  parties  that  the  note  should  not  be  demanded 
till  some  future  day,  has  been  somewhat  considered.  In  some 
cases  it  has  been  doubted  whether  such  evidence  is  admissible, 
on  the  ground  that  it  would  be  allowing  parol  evidence  to  vaiy 
the  written  contract. («)  In  another  case,  it  was  considered  as 
material  in  determining  the  question  of  reasonable  time,  and  not 
as  controlling  the  terms  or  tenor  of  the  note. (6)  It  is  neces- 
sary for  the  indorser  or  maker  to  be  a  party  to  the  agreement,  if 
it  is  to  be  considered  as  admissible. (c) 


{]/)  Supm,  p.  269,  notey. 

{z)  C/iurch,  C.  J,  JjOckvfooA  v.  Crawford,  18  Conn.  361.  In  Wethey  ».  Andrews, 
3  Hill,  .'582,  Cowen,  J.  said  :  "  If  it  (the  note)  had  not  been  on  interest,  not  being  a  bank- 
note, I  should  have  thought  it  right  to  presume  that  it  had  been  demanded,  and  pay- 
ment refused  (perhaps  even  within  a  week).  I  would  presume  it  on  the  unwillingness 
which  every  prudent  man  feels  to  have  his  money  lie  idle ;  and  would  presume  that 
the  holder  had  seen  or  sent  to  the  maker  immediately,  and  pressed  him  for  payment. 
But  I  think  that  directly  the  contrary  is  to  be  presumed  with  regard  to  this  note,  which 
bore  interest.  No  one  would  understand  the  parties  to  intend  that  these  words  meant 
interest  for  a  few  weeks  only ;  nor  would  the  payee  or  purchaser  of  a  note  ordinarily 
desire  to  take  it  on  the  terms  of  a  payment  so  soon.  It  would  be  contrary  to  the  general 
course  of  business  to  demand  payment  short  of  some  proper  point  for  computing  inter- 
est, such  as  a  quarter,  half  a  year,  year,  &c."  But  in  Sice  v.  Cunningham,  I  Cowen,  397, 
it  was  held  that  the  fact  that  the  note  was  payable  with  interest  did  not  take  it  out  of  the 
ordinary  rule,  and  the  same  opinion  is  expressed  in  Perry  v.  Green,  4  Harrison,  61,  64. 
Some  importance  is  given  to  this  fiict  by  Bayley,  J.,  in  Barough  v.  White,  4  B.  &  C. 
32.5,  but  Ilolroi/d  and  LHlledale,  JJ.  do  not  mention  it.  They  do,  however,  speak  of  it 
in  the  same  case  as  reported  in  6  Dow.  &  R.  379.  Parke,  B.,  in  his  opinion  in  Brooks 
i;.  Mitchell,  9  M.  &  W.  15,  does  not  advert  to  it. 

(a)   Sice  v.  Cunningham,  1  Cowen,  397  ;  Perry  v.  Green,  4  Harrison,  61. 

(6)  Lockwood  v.  Crawford,  18  Conn.  361.  See  Brock  v.  Thompson,  1  Bailey,  322. 
In  Field  v.  Nickerson,  13  Mass.  131,  the  point  was  touched  upon,  but  not  decided. 

(c)  Perry?;  Green,  4  Harrison,  61.  See  Martin  v.  Winslow,  2  Mason,  241.  In 
Lord  V.  Chadoourne,  8  Greenl.  198,  it  was  doubted  whether  the  fact  that  the  indorser 
requested  the  indorsee  not  to  call  upon  the  maker  "  at  present "  would  excuse  a  delay 
of  six  months. 


380  NOTES    AND    BILLS.  [CH.  XL 

The  authorities  are  not  uniform  as  to  the  effect  of  notes  which 
are  pjiven  as  a  security  for  a  loan,  or  as  accommodation  paper; 
the  better  opinion  being,  that  such  notes  should  be  placed  on  the 
same  footing  as  others. ((/)  The  distance  at  which  the  parties 
reside  from  each  other  has  some  effect  on  this  question  as  to  what 
is  reasonable  time,  a  shorter  period  being  allowed  when  the  par- 
ties live  in  immediate  proximity. (e) 

Where  there  are  several  payments  indorsed  on  the  note,  the 
time  of  the  last  payment  is  said  to  be  that  from  which  the  reason- 
able time  is  reckoned. (/) 

When  the  note  is  offered  in  evidence,  duly  indorsed,  there  be- 
ing no  date  to  the  indorsement,  the  presumption  is,  that  it  was 
indorsed  before  its  maturity,  and  the  burden  is  upon  the  party 
seeking  to  invalidate  the  note  on  the  ground  of  dishonor  before 
indorsement,  to  show  that  the  transfer  took  place  after  a  reasona- 
ble time  had  elapsed. (»■)  But  when  it  is  once  shown  to  have 
been  transferred  to  the  holder  at  a  time  which  would,  in  general, 


{d)  In  Vrceland  v.  Hyde,  2  Hall,  429,  the  note  was  witnessed,  and  payable  "without 
default  or  defalcation."  It  was  given  for  a  loan,  and  no  demand  was  made  for  twenty- 
one  months.  The  question  was  whether  the  indorser  should  be  discharjicd.  "  The 
rule  requiring  a  presentment  within  a  reasonable  time  was  intended  for,  and  is  appli- 
cable to,  negotiable  instruments  made  for  commercial  purposes  onlij.  It  was  not  intended 
for  cases  of  suretyship,  or  notes  of  a  like  description,  and  the  present  one  is  evidently 
excluded  from  the  rule,  by  the  peculiar  circumstances  attending  it.  Here  the  holder  was 
an  old  man,  not  connected  with  business,  residing  at  some  distance  from  the  city.  The 
defendant  knew  these  circumstances,  and  cannot  claim  any  peculiar  indulgence  from 
a  consideration  of  the  facts.  As  each  case  is  governed  in  some  degree  by  the  circum- 
stances attending  it,  in  tiiis  there  must  be  judgment  for  the  jilaintift'."  But  the  better 
doctrine  is  that  laid  down  in  Sice  v.  Cunningham,  1  Cowen,  397  ;  Perry  v.  Green,  4 
Harrison,  61,  where  it  was  held  that  the  general  rule  ap])lied  to  notes  given  for  loans. 
In  the  latter  case  it  was  also  held  that  an  indorsement  for  the  maker's  accommodation 
was  to  be  considered  as  any  other  indorsement  "  It  makes  no  difference  in  the  case, 
that  the  indorsement  was  in  lieu  of  a  former  security  between  tlie  same  j)arties,  or  was 
for  the  accommodation  of  the  maker,  unless  the  indorser  as.sentcd  to  the  delay."  Story, 
J.,  Martin  v.  Winslow,  2  Mason,  241. 

(e)  Ttl;ilimnn,  C.  J.,  Cromwell  v.  Arrott,  1  S.  &  R.  180,  184.  Sec  M'Kinncy  v. 
CrawfonI,  8  id.  3.51  ;  Nash  v.  Harrington,  2  Aikens,  9,  1  id.  39  ;  Ecdcs  v.  Ballard,  2 
McCord,  388.  For  the  circumstances  bearing  on  this  question,  as  regards  present- 
ment for  acceptance,  sec  supra. 

(/)  Sanford  v.  Mickles,  4  Johns.  224 

(fl)  lianger  v.  Cary.  1  Met.  309.  Nor  is  the  burden  removed  by  proof  that  the  noto 
was  delivered  to  the  holder  before  dishonor,  but  was  not  indorsed  till  aft<'r\vard.  Ibid. 
In  this  case  the  indorsement  was  not  written  till  two  years  after  the  transfer.  The 
judge  charged  the  jury,  that  the  title  was  vested  in  the  holder  at  the  time  of  deiiverj 
and  when  iIk;  consideration  was  paid,  as  regards  letting  in  the  equities.     Hi'id  coirf  rt 


CH.  XI.]  AT    WHAT    TIME   DEMAND    SHOULD    BE   MADE.  381 

be  considered  as  beyond  the  period  recognized  as  a  reasonable 
time,  or  where  no  demand  has  been  made  upon  the  maker  for  tlie 
purpose  of  fixing  the  lial)ility  of  an  indorser  within  that  period, 
the  burden  is  then  shifted  upon  the  liolder,  or  the  party  seeking 
to  enforce  a  claim  by  means  of  the  rule,  to  show  such  circum- 
stances as  will  amount  to  a  legal  excuse  for  not  presenting  the 
paper  sooner. (A) 

A  note  or  bill  in  which  no  time  of  payment  is  mentioned  is 
equivalent  to  a  note  on  demand,  and  it  is  held  that  no  evidence  is 
admissible  to  affect  the  bill  by  proof  of  a  different  agreement. (i) 

A  note  indorsed  after  maturity  is  equivalent  to  a  note  on 
demand,  so  far  at  least  as  regards  the  necessity  of  presentment 
to  the  maker  in  order  to  charge  the  indorser. (j)     The  demand 

{k)  Martin  v.  Winslow,  2  Mason,  241  ;  Hendricks  v.  Judah,  1  Johns.  319;  Emerson 
r.  Crocker,  5  N.  H.  159. 

(i)  Finer  v.  Clary,  17  B.  Mon.  66-3  ;  Thompson  v.  Ketcham,  8  Joluis.  189;  Herrick 
t.  Bennett,  id-.  374;  Cornell  v.  Moulton,  3  Denio,  12  ;  Bennett,  J.,  Michigan  Ins.  Co.  v. 
Leavenworth,  30  Vt.  11,  20  ;  Whitlock  v.  Underwood,  2  B.  &  C.  1.57,3  Dow.  &  R.356, 
placing  such  notes  on  the  same  footing  as  those  on  demand,  with  reference  to  the  stamp 
act ;  Siieehy  v.  Mandeville,  7  Cranch,  208,  where  the  declaration  did  not  state  when 
the  note  was  payable,  and  tlie  note,  when  offered  in  evidence,  proved  to  be  payable  at 
a  definite  time,  —  held  a  fatal  variance ;  Bacon  v.  Page,  1  Conn.  404,  where  the  dec- 
laration was  held  bad  for  not  averring  the  note  to  be  payable  on  demand,  although  it 
concluded  by  averring  "  that  the  defendant  hath  never  performed  the  same,  though 
often  requested  and  demanded,"  &c. ;  Green  v.  Drebilbis,  1  Greene,  la.  552,  where  it 
was  held  that  the  words  "  on  demand  "  need  not  be  used  in  the  declaration,  and  that 
words  of  similar  import  were  sufficient.  In  Bank  of  Utica  v.  Smedes,  3  Cowen,  662, 
the  declaration  alleged  an  undertaking  by  the  defendants  to  charge  the  first  indorser 
of  notes  payable  on  demand,  and  set  forth  the  first  indorsement  to  the  plaintiffs  as 
having  been  made  on  a  daj'  certain,  the  indorsement  and  delivery  of  the  notes  by  the 
plaintifis  to  the  defendants  about  six  months  after,  and  their  undertaking  at  the  lat- 
ter time.  Held  sufficient,  especially  after  verdict,  though  the  declaration  did  not  aver 
that  the  demand  of  payment  was  made  witiiin  a  reasonable  time.  Freeman  v.  Ross, 
15  Ga.  252. 

(j)  In  the  following  cases,  where  it  was  contended  in  argument  that  no  presentment 
was  necessary,  it  was  held  that  demand  must  be  made.  Berry  v.  Robinson,  9  Johns. 
121 ;  Leavitt  v.  Futnam,  1  Sandf  199  ;  Bishop  v.  Dexter,  2  Conn  419  ;  Dwight  v.  Em- 
erson, 2  N.  H.  159  ;  Bank  of  Nortli  America  v.  Barriere,  1  Yeates,  360  ;  an  early  Fenn- 
sylvania  case  to  the  contrary  must  be  considered  as  overruled  by  M'Kinnej-  v.  Craw- 
ford, 8  S.  &  R.  351  ;  Fatter.son  v.  Todd,  18  Fenn.  State,  426  ;  Ecfcrt  v.  Des  Coudres, 
3  Const.  R.  69;  Course  v.  Shackleford,  2  Nott  &  McC.  283;  Ale  wood  v.  Haseldon,  2 
Bailey,  457  ;  Levy  v.  Drew,  14  Ark.  334;  Foole  v.  Tolle.son,  1  McCord,  199  ;  Benton 
V.  Gibson,  1  Hill,  S.  Car.  56.  But  in  Gray  v.  Bell,  3  Rich.  71,  O'Neall,  J.  said:  "I 
am  however  prepared  to  go  much  further,  and  to  hold  tliat  the  indorser  of  a  note  ne- 
gotiated after  due,  is  to  be  regarded  cither  as  a  new  maker,  or  as  the  drawer  of  a  bill 
on  a  man  without  funds  ;  in  neither  of  which  cases  is  a  demand  of  payment  or  notice 
at  all  necessary.     But  a  majority  of  the  court  is  not  as  yet  prepared  to  go  so  far." 


382  NOTES   AND   BILLS.  [CH.  XL 

mast  be  made  within  a  reasonable  time  ;  (k)  and  with  regard  to 
what  shall  be  considered  reasonable  time,  it  is  laid  down  by  some 
authorities  that  the  same  strict  rules  are  not  to  be  applied  as 
are  required  where  a  note  has  still  time  to  run.(/)  But  other 
authorities  seem  to  place  the  two  classes  of  cases  on  the  same 
footing,  («i)  and  it  is  believed  with  better  reason  ;  for  the  law  on 


(k)  Sanborn  v.  Southard,  25  Maine,  409 ;  Branch  Bank  v.  GafFney,  9  Ala.  1 53 ; 
Benton  v.  Gibson,  1  Hill,  S.  Car.  56 ;  Van  Hoesen  v.  Van  Alstyne,  3  Wend.  75  ; 
Bishop  V.  Dexter,  2  Conn.  419. 

(/)  Duncan,  J.,  M'Kinney  v.  Crawford,  8  S.  &  R.  351  ;  Hall  v.  Smith,  1  Bay,  330  ; 
Chadwick  v.  Jeffers,  1  Rich.  397  ;  Gray  v.  Bell,  2  Rich.  67,  3  id.  71.  In  Rugely  v. 
Davidson,  4  Const.  R.  33,  Gantt,  J.  said  :  "  But  when  a  note  is  indorsed  after  it  is  due, 
the  transaction  assumes  a  different  aspect.  It  is  no  lon<,'er  a  case  within  the  custom 
and  usage  of  trade ;  the  expectation  of  punctuality  of  payment  from  the  drawer  has 
vanished,  and  the  holder,  in  ordinary  transactions  of  this  kind,  looks  rather  to  the  per- 
son with  whom  he  has  contracted  than  to  the  drawer,  for  indemnity." 

(m)  In  Dehers  v.  Harriot,  1  Show.  163,  all  the  merchants  agreed  ''  that  a  bill  nego- 
tiated after  the  day  of  payment  was  like  a  bill  payable  at  sight."  By  a  statute  in  Mas- 
sachusetts, sixty  days  from  the  date  of  a  note  is  declared  to  be  the  period  of  rciisonalilc 
time  within  which  demand  is  to  be  made  upon  the  promisor,  in  order  to  charge  an 
indorser  ;  and  in  Rice  v.  Wesson,  1 1  Met.  400,  where  the  indorsement  was  made  more 
than  sixty  days  from  the  date,  the  court  expressed  an  opinion  to  the  effect  that  the 
same  lengtli  of  time  was  still  to  be  considered  as  reasonable.  They  also  decided  that 
the  defendant  was  not  liable,  because  the  holder,  having  demanded  payment  earlier 
than  he  was  obliged  to,  neglected  to  give  the  indorser  notice,  although  a  subsequent 
demand  was  made  within  a  reasonable  time,  and  notice  of  the  last  demand  was  duly 
given.  In  Bishop  v.  Dexter,  2  Conn.  419,  Gould  and  Hosnur,  JJ  expressly  say  that 
there  is  no  difference  between  the  rules  applicable  to  each  class.  So  Collier,  J.,  Kcnnon 
V.  M'Rea,  7  Port.  Ala.  175  ;  Adams  v.  Torbert,  6  Ala.  865;  Branch  Bank  r.  Gaffney, 
9  id.  153.  See  Ecfert  v.  Des  Coudres,  3  Const.  R.  69  ;  Course  v.  SliacUkford,  2  Nott  & 
McC.  283  ;  Poole  v.  Tolleson,  I  McCord,  199,  where  Richardson,  J  said:  "  If  it  be 
asked  when  notice  is  to  be  given,  I  can  only  answer  that,  in  my  individual  judgment, 
immediate  notice  is  as  much  required  in  such  a  case  as  in  an}'  other.  Not  only  sim- 
plicity and  uniformity  require  that  the  same  rule  should  prevail,  but  there  is  the  same 
force  of  reason  and  necessity  in  the  one  case  as  the  other,  wlietlicr  we  argue  from 
the  letter,  the  allowed  import  of  the  contract,  or  from  the  consequences  wliich  may 
follow."  These  same  reasons  would  appear  to  a[)i)ly  all  the  more  strongly  to  pre- 
sentment. 

There  are  two  early  cases  in  Vermont,  where  an  opinion  is  expressed,  that  at  least 
as  much  strictness,  if  not  more,  is  necessary  in  the  case  of  an  indorsement  after  matu- 
rity as  in  any  other.  Thus,  in  Nash  v.  Harrington,  2  Aikens,  9,  a  note  on  demand 
was  indorsed  eight  months  from  date,  and  was  treated  as  overdue.  The  holder  neg- 
lected presentment  till  the  seventh  day  after  the  indorsement  to  him,  and  it  was  held 
tluu  the  indorser  was  discharged.  Hutchinson,  J.  said :  "  Under  these  circumstances, 
the  demand  should  have  been  made  in  a  day  or  two  at  furthest."  The  same  judge 
said,  in  Aldis  v.  Johnson,  1  Vt.  136,  140:  "If  the  indorsement  bo  made  ai'ter  th« 
note  falls  due,  the  demand  of  payment  must  be  made  as  if  the  note  fell  due  the  day  of 
the  indorsement." 


CH.  XI.]  AT   WHAT   TIME   DEMAND   SHOULD    BE   MADE.  383 

the  subject  of  reasonableness  of  time  would  seem  to  be  of  itself 
sufficiently  difficult,  without  burdening  it  with  unnecessary  dis- 
tinctions and  uncertainties,  which  can  only  serve  to  render  it 
more  difficult  and  obscure. (w) 

A  bill  payable  at  or  after  sight  must,  as  has  been  seen,  be  pre- 
sented for  acceptance  within  a  reasonable  tirae,(o)  and  also,  if 
accepted,  at  maturity  for  payment ;  (p)  and  a  note  so  payable 
must  likewise  be  presented  for  payment  within  such  time,  before 
the  maker's  liability  can  accrue. (^) 

(w)  The  tendency  to  create  confusion  by  introducing  distinctions  on  this  j)oint  may 
well  be  illustrated  by  the  decisions  in  South  Carolina,  which  are  almost  as  numerous 
as  those  of  all  the  other  States  togctlicr,  and  many  of  them  cannot  be  reconciled  one 
with  another.  It  has  been  held  in  that  State,  that  the  question  of  reasonableness  of 
time,  in  case  of  notes  indorsed  after  maturity,  is  one  wliich  the  jury  are  to  decide  ;  Hall 
V.  Smith,  1  Bay,  330  ;  Eccles  v.  Ballard,  2  JSIcCord,  388 ;  Benton  v.  Gibson,  1  Hill,  S. 
Car.  .5(5 ;  Brock  v.  Thompson,  1  Bailey,  322  ;  Chadwick  v.  Jeffers,  1  Rich.  397 ;  Gray 
V.  Bell,  2  id.  67,  3  id.  71.  In  Gray  v.  Bell,  2  Rich.  67,  Butler,  J.  said,  in  speaking  of 
the  diligence  in  respect  to  demand  and  notice  where  the  note  is  indorsed  after  it  is  due : 
"  This  diligence  does  not  admit  of  such  exact  definition  as  always  to  be  a  question  of 
law,  but  must,  as  it  would  seem  from  our  decisions,  be  left,  under  all  the  circumstances 
of  the  case,  to  the  decision  of  a  jury.  The  kind  of  diligence  that  should  be  observed 
and  pursued  by  an  indorsee,  in  respect  to  the  collection  of  a  note  indorsed  before 
due,  is  well  settled  by  certain  and  acknowledged  rules,  and  is  such  as  always  to 
make  it  a  question  of  law  for  the  court."  It  is  difficult  to  see  any  good  reason  for 
such  a  distinction  as  this.  In  Brock  v.  Thompson,  I  Bailey,  322,  it  was  held  that 
parol  evidence  of  a  stipulation  by  the  indorser,  at  the  time  of  the  transfer,  that  thq 
maker  should  be  indulged  as  to  time  by  the  holder,  is  admissible  to  show  the  de- 
gree of  diligence  to  which  the  holder  was  bound.  In  this  case  the  agreement  was  that 
the  maker  should  not  be  called  on  for  one  half  the  amount  of  the  note  till  the  next  win- 
ter, and  for  the  other  half  till  the  spring  following.  A  demand  was  made  in  Novem- 
ber, a  second  during  the  winter,  and  a  third  on  March  1st.  No  notice  appears  to  have 
been  given,  except  of  the  last  demand.  Held  sufficient  evidence  of  due  diligence  to  go 
to  a  jury,  and  a  verdict  for  the  plaintiffs  was  sustained.  In  Benton  v.  Gibson,  1  Hill, 
S.  Car.  56  ;  Chadwick  v.  Jeffers,  1  Rich.  397  ;  Gray  v.  Bell,  3  id.  71,2  id.  67,  it  was 
held  that  service  of  a  writ  on  the  maker  was  sufficient,  if  known  to  the  indorser  at  the 
beginning  of  the  suit  or  immediately  after ;  and  in  Gray  v.  Bell,  3  Rich.  71,2  id.  67, 
where  the  maker  and  indorser  were  sued  by  separate  writs  served  simultaneously,  it 
was  held  that  the  mere  fact  that  the  suits  were  commenced  at  the  same  time  was  suffi- 
cient to  carry  with  it  a  presumption  of  knowledge  on  the  part  of  the  indorser,  and  to 
justify  a  verdict  of  the  jury  in  favor  of  the  holder.  In  Chadwick  v.  JefTcrs,  1  Rich. 
397,  Frost,  J.  said  that  the  duty  of  the  holder  in  respect  to  demand  and  notice  "  is  lim- 
ited to  the  use  of  such  diligence,  according  to  the  circumstances  of  the  case,  that  the  in- 
dorser suffer  no  injury  through  his  remissness  or  neglect."  And  finally,  as  has  already 
been  stated,  in  Gray  v.  Bell,  3  Rich.  71,  supra,  p.  381,  note  j,  O'Neall,  J.  said,  that 
in  his  opinion  no  presentment  at  all  to  the  maker  was  necessary. 

(o)  Supra,  p.  338,  note  c. 

(p)  See  supra,  p.  375. 

{q)  See  supra,  n.  376. 


384  NOTES   AND   BILLS.  [CH.  XI. 

A  note  "on  demand  at  sight"  is  the  same  as  if  payable  at 
si2;ht.(r) 

If  a  note  or  bill  be  payable  on  time,  whether  that  time  begins 
to  run  from  the  date,  or  from  sight  or  demand,  the  question 
sometimes  arises  as  to  how  the  time  is  to  be  computed.  The 
word  "  month  "  means  in  the  law  merchant  a  calendar  month, 
and  has  always  been  so  interpreted  in  relation  to  notes  and 
bills.(5) 

A  note  or  bill  is  usually  payable  at  a  certain  number  of  days 
"  after  "  sight,  demand,  or  date,  and  this  word  certainly  excludes 
the  day  of  the  presentment ;  (t)  or,  in  the  case  of  a  bill  presented 
on  one  day,  but  accepted  on  another,  the  day  of  acceptance, (z<) 


(;■)  Dixon  V.  Nuttall,  1  Ciomp.  M.  &  R.  307. 

(s)  Loffingvvell  v.  White,  1  Johns.  Cas.  99  ;  Thomas  v.  Shoemaker,  6  Watts  &  S. 
179  ;  Wagner  v.  Kenner,  2  Rob.  La.  120  ;  MclMurchey  v.  Robinson,  10  Ohio,  496.  Seo 
Cockell  V.  Gray,  3  Brod.  &  B.  186  ;  Jolly  v.  Young,  1  Esp.  186. 

(t)  In  Coleman  v.  Saver,  1  Barnard.  303,  an  action  against  the  indorser  of  a  bill 
payable  at  six  days  after  sight,  "the  Chief  Justice  said  that  tiie  day  of  sight  is  to  be 
taken  exclusive,  for  the  law  will  not  allow  of  fractions  in  a  day."  In  Bellasis  v.  Hes- 
ter, 1  Ld.  Raym.  280,  the  plaintiff  declared  upon  a  bill  payable  at  ten  days  after  sight, 
seen  and  accepted  May  5th.  The  teste  was  dated  May  15th.  The  defendant  prayed 
that  the  writ  might  abate,  and  the  plaintiff  demurred.  The  defendant  contended  that 
the  day  should  be  excluded,  "  because  it  is  always  so  understood  among  merchants." 
The  court  were  of  opinion  that  the  custom  should  have  been  pleaded  specially.  Poio- 
ell  and  Xevill,  JJ.  decided  that  the  day  should  be  included,  but  Trehy,  C.  J.  held  that  it 
should  be  excluded.  "  1.  Because  the  bill  may  be  seen  the  last  minute  of  the  day,  and 
that  may  I>e  intended  as  reasonable  as  that  it  was  seen  the  first  minute  ;  2.  the  party 
may  have  the  whole  day  to  view  the  bill,  and  that  is  allowed  him  by  the  law ; 
3.  because  the  contrary  construction  seems  absurd ;  for  tlien,  if  a  bill  be  payable 
one  day  after  sight,  it  must  be  paid  the  same  day  that  it  is  seen,  which  is  not  the 
day  after  tlic  sight,  as  the  bill  requires."  In  Lester  v.  Garland,  15  Vcs.  248,  Sir  Wm. 
(Jrant,  M.  R.  said  :  "  It  is  now  settled  that  the  day  upon  which  a  bill  is  presented  is 
to  be  excluded,  though  it  had  been  ruled  otherwise  by  three  judges  of  the  Court  of 
Common  Pleas  against  the  opinion  of  TrtJnj,  C.  J."  See  Blanciiard  v.  Ililliard,  11 
Mass.  85,  where  it  is  said  that  the  usage  of  banks  in  Massachusetts  had  formerly  been 
to  include  the  day  of  date  ;  Woodbridge  v.  Brigbam,  12  id.  403,  13  id.  556  ;  Presbrey 
r.  Williams,  15  id.  193,  by  Jackson,  J  ,  who  said,  "  because  otherwise  a  note  payable  in 
one  day  would  be  the  same  as  a  note  payable  on  demand." 

(//)  Mitchell  V.  DeGrand,  1  Ma.son,  176,  Ston/,  J.:  "A  bill  payable  in  so  many  days 
after  sight,  means  after  so  many  days'  legal  sight.  Now  it  is  not  merely  the  fact  of 
having  seen  the  bill,  or  known  of  its  existence,  that  constitutes  a  presentment  to  tho 
drawee  in  legal  contemjjlation.  It  must  be  presented  to  him  for  acceptance,  and  tho 
time  ot  the  bill  begins  to  run,  not  from  the  mere  ])r(sentment,  i)Ut  from  the  pre- 
sentment and  acceptance."  "The  doctrine  of  relation  cannot  apply  to  cases  of 
this  nature." 


CII.  XI.]  AT    WHAT    TIME    DEMAND    SHOULD    BE    MADE.  385 

demand,  or  datc,(?;)  and  includes  the  day  on  wliich  the  note  is 
mature,  (ty) 

If  it  be  payable  at  sight, (a;)  or  after  any  particular  event,  the 
rule  is  the  same.  The  same  construction  is  put  upon  the  words 
"  in,"(//)  "  from,"(z)  "  from  date,"  and  "  from  the  day  of  the 
date,"  and  they  are  held  to  be  synonymous. (a) 

A  question  has  arisen  with  reference  to  notes  payable  on  de- 
mand, as  to  whether  the  Statute  of  Limitations  is  to  be  construed 
as  excluding  the  date,  or  including  it,  and  the  authorities  on  this 
point  are  conflicting. (6) 


(v)  Fisher  v.  State  Bank,  7  Blsickf.  610;  Taylor  i\  Jacoby,  2  Penn.  State,  495  ; 
Barlow  v.  Planters'  Bank,  7  How.  Miss.  129;  Henry  y.  Jones,  8  Mass.  453 ;  Homes 
V.  Smyth,  16  Maine,  181  ;  Ammidown  v.  Woodman,  31  id.  580;  Avery  v.  Stewart,  2 
Conn.  69,  where  the  note  was  not  negotiable. 

(w)  Ripley  v.  Greenleaf,  2  Vt.  129,  132.  It  is,  in  fact,  always  so  computed.  Thus 
in  May  v.  Cooper,  Fortes.  376,  the  defendant  pleaded  a  tender  on  Aug.  1st  of  a  noto 
dated  July  21st,  payable  in  ten  days,  and  it  was  held  to  be  a  day  too  late.  In  Cram, 
lington  V.  Evans,  2  Vent.  307,  a  bill  drawn  Nov.  10th,  at  twenty-five  days  from  date, 
was  presented  Dec.  5,  and  it  was  alleged  for  error  that  "  there  were,  as  appears  by  the 
bill  of  exchange,  twenty-five  days  given  for  the  payment  of  it  after  the  date  of  the  bill; 
whereas  here  the  request  and  refusal  is  upon  the  twenty-fifth  day  after  the  date.  SlcI  non 
allocatur,  for,  as  the  bill  is  set  forth,  it  is  to  pay  the  money  ad  viginti  et  quinque  dies  post 
datum,  and  this  can't  be  if  not  paid  at  the  five-and-twentieth  day."  In  Hartford  Bank 
V.  Barry,  17  Mass.  94,  where  a  note  dated  May  20th,  at  four  months  with  grace,  was 
demanded  Sept.  23d,  a  point  reserved  at  the  trial  at  Nisi  Prius,  that  the  demand  was 
a  day  too  early,  was  abandoned  by  the  counsel  for  the  defendant. 

(:r)  This  would  seem  to  depend  upon  the  question  whether  days  of  grace  are  al- 
lowed on  bills  at  sight.  If  they  are,  the  date  would  be  excluded  ;  otherwise  the  bill 
would  become,  it  is  conceived,  payable  immediately.  Sec  this  subject  treated  of  infra, 
pp. 404-406. 

(v)  Henry  v.  Jones,  8  Mass.  453,  where  the  court  said  :  "  In  the  case  at  bar,  the  note 
was  made  payable  in  sixty  days,  without  adding,  as  is  customary,  from  the  date.  But  the 
intention  is  apparent,  and  the  court  will  supply  the  omission.  The  meaning  must  be 
the  same  as  in  sixty  days  from  the  date,  otherwise  a  note  payable  in  one  day  would  be 
payable  immediately,  which  would  be  an  absurdity."  Leavitt  v.  Simes,  3  N.  H.  14 ; 
Blake  v.  Crowninshield,  9  id.  304.  See  the  remarks  of  Howard,  J.,  cited  infra,  note  z. 
The  date  was  excluded  in  case  of  a  note  payable  in  nine  months  without  grace,  in  Hill 
V.  Norvell,  3  McLean,  583. 

{z)  Henry  v.  Jones,  8  Mass.  453 ;  Avery  v.  Stewart,  2  Conn.  69.  In  Ammidown 
V.  Woodman,  31  Maine,  580,  Howard,  J.  said  :  "  If  there  be  several  notes  of  the  same 
date,  some  payable  in  six  months,  some  in  six  months  from  date,  and  some  in  six 
months  after  date,  they  all  have  the  same  pay-day.  In  all  of  them  the  day  of  the  date 
is  excluded." 

(a)  Henry  v.  Jones,  8  Mass.  453.  "  Where  a  note  is  payable  in  a  certain  number  of 
liays  from  the  date,  or  from  the  day  of  the  date,  the  day  of  the  date  is  to  be  excluded." 
So  Gibson,  C.  J.,  Taylor  v.  Jacoby,  2  Penn.  State,  495. 

(6)  In  Presbrey  v.  Williams,  15  Mass.  193,  the  note  was  dated  Feb.  16th,  1810.    On 

Vol.  I.— Z 


386  NOTES  AND   BILLS.  [CH.  XI 

If  a  note  or  bill  has  no  date,  or  a  void  or  impossible  one,  the 
time  must  be  computed  from  the  day  on  which  it  was  delivered 
or  issued  ;  (c)  because  there  would  seem  to  be  "  no  other  certain 
indicium  of  the  time  of  its  taking  efFect."((i)  Where  no  date  or 
delivery  is  shown,  the  date  is  to  be  considered,  it  would  seem,  as 


Nov.  1st,  1811,  a  payment  had  been  made  and  indorsed  upon  the  note.  The  action 
was  commenced  Nov.  1st,  1817.  Jackson,  J.  said  :  "By  the  Statute  of  Limitations  it 
was  intended  that  the  plaintiff  should  have  six  full  years,  and  no  more,  within  which 
to  bring  his  action.  In  this  case  he  might  have  brought  his  action  on  the  1st  of  No- 
vember, 1811,  as  upon  a  new  promise  then  made,  supposing  that  the  action  had  been 
previously  barred  by  the  statute  ;  and  if  he  may  also  commence  it  on  the  1st  day  of 
November,  1817,  it  would  make  se-ven  first  days  of  November  in  the  six  years  pre- 
scribed by  the  statute.  In  the  construction  of  a  promissory  note,  payable  in  a  certain 
number  of  days,  the  day  of  the  date  is  excluded  ;  because,  otherwise,  a  note  payable  in 
one  day  would  be  the  same  as  a  note  payable  on  demand,  and  this  is  the  reason  given 
in  the  case  of  Henry  v.  Jones,"  8  Mass.  453,  supra,  note  y. 

The  contrary  was  held  in  Cornell  v.  Moulton,  3  Denio,  12,  where  Bwnson,  C.  J. 
said  :  "  Our  cases  all  go  to  establish  one  uniform  rule,  whether  the  question  arises  upon 
the  practice  of  the  court,  or  the  construction  of  a  statute,  and  the  rule  is  to  exclude  the 
first  day  from  the  computation." 

(c)  In  De  la  Courtier  v.  Bellamy,  2  Show.  422,  "  the  foct  was  alleged  to  be,  that  a 
party  drew  such  a  bill  such  a  day,  and  the  same  was  afterwards  presented  to,  and  ac- 
cepted by,  the  defendant.  An  exception  was  taken,  that  the  date  of  the  bill  ^ras  not 
set  forth,  and  the  court  held  it  was  well  enough,  and  they  would  intend  it  dated  at  tlie  time 
of  drawing  it."  In  Hague  v.  French,  3  Bos.  &  P.  1 73,  the  first  count  in  the  declaration 
stated  that  the  defendant,  on  the  1.5th  day  of  September,  1800,  drew  a  bill  of  exchange 
bearing  date  the  day  and  year  aforesaid,  payable  two  months  after  date.  The  second 
count  stated  that  afterwards,  to  wit,  on  the  day  and  year  aforesaid,  the  defendant  drew 
a  certain  other  bill  of  exchange,  payable  two  months  after  date.  No  express  date  was 
mentioned  in  either  count,  but  they  were  both  held  to  be  good.  In  Giles  v.  Bourne,  6 
Manic  &  S.  73,  2  Chitty,  300,  the  plaintiff  declared,  that  "on  February  22d,  1816,  A 
made  his  bill  of  exchange,  and  thereby  required  the  defendant,  four  months  after  date, 
to  pay  at  Messrs.  V.  &  Co."  &c.  On  demurrer  because  no  date  was  assigned  to  the 
bill,  it  was  held  that  the  declaration  was  good,  for  it  might  "be  intended  that  the  date 
of  the  bill  was  the  day  on  wliich  it  was  alleged  to  have  been  made."  A  distinction 
attempted  to  be  taken  between  Hague  v.  French,  3  Bos.  &  P.  173,  and  this  case,  that 
tlic  former  came  before  the  court  on  a  writ  of  error,  and  the  latter  on  demurrer,  was 
overruled.  In  Mechanics'  Bank  v.  Schuyler,  7  Cowen,  337,  note  a,  Sutherland,  J.  said  : 
"  Where  they  (a  note  or  bill)  have  no  date,  the  time,  if  necessary,  may  be  inquired 
into,  and  will  be  computed  from  the  day  they  were  issued."  Where  an  award  has  no 
date,  the  time  must  be  computed  from  the  delivery.  Armitt  v.  Breame,  2  Ld.  Raym. 
1076.  So  where  a  deed  has  no  date,  or  an  impossible  or  void  one.  Com.  Dig.  Fait, 
(B.  3) ;  Styles  v.  Wardlc,  4  B.  &  C-  90S.  So  in  a  lease;  Bac.  Abr.  Leases,  (E)  2, 
Rule  2,  1  ;  and  in  a  bond  ;  Goddard's  case,  2  Rep.  5. 

((/)  Bac.  Abr.  Leases,  (E)  2,  Rule  2,  1.     This  was  said  with  reference  to  leases,  but 
there  seems  to  be  no  good  reason  why  it  should  not  apply  to  notes.     The  language 
Bomctimes  used  is,  that  a  note  witliout  a  date  takes  effect  from  the  time  of  its  making 
but  this,  it  would  seem,  is  inaccurate. 


CH.  XI.]  AT   WHAT   TIME   DEMAND   SHOULD   BE   MADE.  387 

that  time  when  the  note  or  bill  can  first  be  proved  to  have  a 
legal  existence. (e) 

We  have  seen  that,  although  a  note  does  not  take  effect  until 
delivery,(/)  and  is  said  to  be  considered  as  made  on  the  day  it  i? 
delivered, (g-)  yet  this  must  be  so  only  as  regards  the  title  or 
the  validity  of  the  contract ;  but  in  respect  to  the  question  of 
computation  of  time, (A)  the  note  takes  effect  from  its  date,  by 
relation  in  case  it  is  ante-dated,  and  prospectively  where  it  is 
post-dated,  (i)     One  reason  of  this  is,  that  it  would  otherwise  be 

(e)  Thus,  in  Mahier  v.  Le  Blanc,  12  La.  Ann.  207,  the  case  turned  upon  the  point 
whetlier  a  draft  was  accepted  prior  to,  or  subsequent  to,  certain  judgments.  Buchanan, 
J.  said  :  "  The  draft  purports  to  be  dated  November  30th,  1849,  but  being  a  writing 
sous  seing  priv^,  it  has,  per  se,  no  date  as  against  third  persons.  The  acceptance  of  the 
draft  bears  no  date,  and  for  the  determination  of  the  antiquitj'  of  the  claim  of  plain- 
tiff, as  compared  with  the  contracts  and  judgments  which  she  seeks  to  annul,  the  only 
date  which  can  be  assigned  to  that  claim  is  the  date  of  the  protest,  to  wit,  November 
4th,  1850  ;  for  no  other  proof  has  been  adduced  of  the  existence  of  the  draft,  or  of  any- 
other  legal  consideration  for  the  same,  at  a  previous  date  to  that  protest."  Chitty  (p.  370, 
10th  ed.,  London)  says  :  "In  general,  the  date  of  a  bill  or  note  should  be  stated,  and 
if  there  be  no  date,  then  the  day  it  was  made  ;  and  if  that  cannot  be  ascertained,  then 
the  first  day  it  can  be  proved  to  have  existed."  Qucere,  whether  a  note  where  no  date 
or  delivery  can  be  ascertained  might  not  in  some  cases  be  considered  as  payable  on 
demand  1 

(f)  Supra,  p.  48,  et  seq, 

(g)  In  Lansing  v.  Gaine,  2  Johns.  300,  Kent,  C.  J.  said :  "  The  date  of  the  notes 
then  becomes  immaterial,  as  they  were  valid  only  from  the  time  of  their  delivery ;  and 
unless  the  contrary  be  shown,  the  presumption  will  be  that  they  were  then  actually  drawn, 
and  were  antedated  by  mistake  or  design.  If  they  had  been  previously  drawn,  they 
had  no  force  while  in  the  possession,  and  under  the  control,  of  the  maker.  To  all  legal 
purposes,  the  notes  are  to  be  considered  as  made  or  drawn  when  they  were  delivered." 
But  this  language,  which  is  rather  too  broad,  was  used  with  respect  to  the  question 
whether  a  partnership  note,  dated  before  dissolution,  but  not  issued  till  afterwards  by 
one  of  the  partners,  bound  the  others,  and  it  was  held  that  it  did  not. 

(h)  In  Brewster  v.  McCardel,  8  Wend.  478,  Sutherland,  J.  said:  "The  date  of  a 
note  is  in  no  respect  material,  except  for  the  purpose  of  determining  when  it  is  pay- 
able." 

{i)  The  time  from  which  the  Statute  of  Limitations  begins  to  run  on  a  note  is  reck- 
oned from  the  date,  not  from  the  delivery.  Bumpass  v.  Timms,  3  Sneed,  459.  So  on 
an  acceptance.  Montague  v.  Perkins,  C.  B.  1853,  22  Eng.  L.  &  Eq.  516.  In  Styles 
V.  Wardle,  4  B.  &  C.  908,  Bayley,  J.  said :  "  "When  there  is  no  date,  or  an  impossible 
date,  that  word  must  mean  delivery.  But  where  there  is  a  sensible  date,  that  word  in 
other  parts  of  the  deed  means  the  day  of  date,  and  not  of  the  delivery  ....  Tlie  ques- 
tion here  is,  What,  in  this  covenant,  is  the  meaning  of  datus  ?  I  consider  that  a  party 
executing  a  deed  agrees  that  the  day  therein  mentioned  shall  be  the  date  for  the  pur- 
poses of  computation.  It  would  be  very  dangerous  to  allow  a  different  construction  of 
the  word  date ;  for  then,  if  a  lease  were  executed  on  March  30th,  to  hold  from  the  date, 
th  It  being  the  25th,  and  the  tenant  were  to  enter  and  hold  as  if  from  that  day,  yet,  after 
tht  expiration  of  the  lease,  he  might  defeat  an  ejectment  on  the  ground  that  the  lease 


o5>'8  NOTES   AND    BILLS.  [CH.  XL 

difficult  to  know  when  the  note  was  due,  and  much  inconven- 
ience would  arise  and  great  risk  be  incurred  from  an  uncer- 
tainty as  to  the  proper  time  of  making  the  demand.  It  would 
seem  that  a  maker  would  be  estopped  from  setting  up  m  defence, 
tliat  a  demand,  though  made  at  a  proper  time  from  the  date, 
was  not  made  at  maturity,  reckoning  from  delivery,  the  evidence 
of  which  would  in  many  cases  be  uncertain  ;  (j)  and  it  cannot 
be  supposed  that  any  such  defence  would  be  open  to  an  indorser 
or  any  other  party.  We  should  not  even  admit  that  the  holder 
might  have  his  option  as  to  which  period  of  time  he  would  use 
in  reckoning  the  date  of  maturity,  for  it  is  obvious  that  the 
former  mode  is  far  preferable,  as  tending  to  create  greater  uni- 
formity and  certainty  in  the  law  on  this  point.  (^^)  It  may  here 
be  remarked,  that  it  is  immaterial  on  what  part  of  the  note  the 
date  is  written. (/) 

The  New  Style,  or  mode  of  reckoning  the  year  according  to 
the  Gregorian  Calendar,  is  used  everywhere  except  in  Russia  and 
those  countries  in  which  the  Greek  Church  is  the  established 
religion,  and  these  still  adhere  to  the  Old  Style,  following  the 
Julian  Calendar,  (w)  In  order  to  convert  the  Old  Style  to  the 
New,  it  is  now  necessary  to  insert  twelve  days.  Thus,  if  a  bill  is 
drawn  in  Russia,  January  1st,  1861,  the  date  would  correspond 
with  January  13th  in  this  country. (w) 


was  executed  on  a,  day  subsequent  to  the  25th  of  March,  and  that  he  did  not  hold  from 
that  day."  In  Towell  v.  Waters,  8  Cowen,  669,  687,  Jones,  Ch.  said  :  "  A  note  has  no 
binding  force,  or  legal  inception,  nor  constitutes  any  contract,  until  delivered  and  in  the 
hands  of  a  bona  fide  holder.  It  acquires  the  form  of  a  contract  from  the  delivery,  and 
not,  ah  initio,  from  the  execution  of  it.  But  when  delivered  it  takes  effect  from  its  date, 
and  for  all  substantial  purposes  becomes  a  binding  contract  upon  the  maker  ah  initio." 

{)')  He  certainly  would  be,  where  a  holder  for  value  received  the  note  in  ignorance 
of  the  facts.  Thus,  in  Huston  v.  Young,  33  Maine,  85,  a  note  dated  January  14th, 
1847,  payable  in  two  years,  was  sued  October  8th,  1849.  The  maker  offered  to  prove 
that  the  note  was  made  in  1848,  that  the  date  1847  was  a  mistake,  and  consequently 
that  the  suit  was  premature.  The  holder  bought  the  note  before  maturity,  unaware  of 
tlic  mistake.     Held,  that  the  evidence  was  inadmissible. 

(k)  See  the  remarks  of  Bai/lei/,  J.,  cited  supra,  note  i. 

(/)  Sheppard  v.  Graves,  14  How.  505,  where  it  was  written  at  the  foot,  opposite  the 
makers'  names. 

(w)  Sie  Encyrlopajdia  Britannica,  Vol.  VIII.  pp.  76  -  78,  tit.  Calendar. 

(n)  (Ircgory  directed  that  October  4th,  1582,  should  be  followed  by  the  15th.  The 
year  1600  being  a  leap-year,  both  according  to  the  Gregorian  and  Julian  Calendar,  no 
further  change  occurred  until  1700,  wliich  being  a  common  year  by  the  Gregorian  8  j4 
a  leap-year  by  the  Julian,  the  difference  between  the  New  and  Old  Style  became  groj.tei 


CII.  XI.]  AT   WHAT    TIME   DEMAND   SHOULD    BE   MADE.  389 

111  the  case  of  bills  drawn  in  a  country  using  one  style,  and 
payable  in  a  country  using  another  style,  if  a  bill  is  payable  at  a 
fixed  period,  the  style  of  the  country  where  it  is  payable  governs 
the  time  of  maturity.  Thus,  if  a  bill  is  drawn  in  London,  dated 
January  13th,  1861,  which  is  January  1st,  1861,  according  to 
the  Old  Style,  on  St.  Petersburg,  payable  at  one  month  after  date, 
it  will,  if  accepted  generally,  be  payable  on  February  4th.  And 
conversely,  a  bill  drawn  in  St.  Petersburg  on  London,  dated  Jan- 
uary 1st,  will  under  like  circumstances  be  payable  on  February 
16th. (o)  If  a  bill  is  payable  after  sight,  or  on  or  after  demand, 
the  computation  is  unaffected  by  any  diversity  of  style. 

Usance  sometimes  comes  into  the  calculation  of  the  time,  if 
the  bill  be  drawn  on  a  country  in  Continental  Europe.  This 
means  the  time  which  is  fixed  by  the  usage  of  the  countries 
between  which  the  bill  is  drawn  for  its  payment ;  (p)  a  bill  being- 
drawn  at  so  many  usances  instead  of  so  many  days. 

We  doubt  whether  usage  has  determined  any  usances  between 
this  country  and  the  countries  of  Europe,  our  bills  being,  usually 
at  least,  drawn  at  a  certain  number  of  days  or  months  instead 
of  usances,  and  this  practice  is  said  now  to  be  taking  the  place 
of  drawing  at  usance  in  Europe. (g)  Usances  are  calculated 
exclusive  of  the  day  of  the  date,  and  days  of  grace  are  allowed 
on  bills  so  drawn. (r)  A  half-usance  is  always  fifteen  days  when 
usance  is  a  month,  notwithstanding  the  unequal  length  of  the 
months.  (5)  Mr.  Chitty(/)  gives  a  full  list  of  those  which  exist 
between  England  and  the  countries  on  the  Continent,  and  we 
have  placed  them  in  our  note.(M) 


by  one.    A  like  increase,  for  a  similar  reason,  took  place  in  the  year  1800,  so  that  now 
the  Old  Style  is  twelve  days  in  advance  of  the  New. 

(0)  That  is,  adding  the  days  of  grace.     Story  on  Bills,  §  331 ;  Chitty,  lOth  ed., 
London,  253. 

(p)  Chitty  on  Bills,  10th  ed.,  London,  254  ;  Story  on  Bills,  §  50. 

(7)  Chitty  on  Bills,  10th  ed.,  London,  254. 

(r)  Chitty  on  Bills,  10th  ed.,  London,  254  ;  Story  on  Bills,  §  332. 

(s)  Byles  on  Bills,  160  ;  Marius,  93. 

(0  Chitty  on  Bills,  10th  ed.,  London,  255-257  ;  Story  on  Bills,  §  332,  note  2 

(u)   Between  London  and 
Aleppo,  1  month  after  date  (sometimes  ac-   Antwerp,  1  month  after  date. 

counted  trehle  usance).  Bahia,  none. 

Altona,  1  month  after  date.  Barcelona,  60  days  after  date. 

America,  North,  60  days.  Berlin,         14     "       "     sight. 

Amsterd>\m,  1  month  after  date.  Bilboa,  2  months  after  date. 

33* 


390 


NOTES  AND   BILLS. 


[CH.  XI 


Another  circumstance  to  be  taken  into  consideration  in  ascer- 
taining the  time  at  which  a  note  or  bill  is  to  be  paid,  is,  that  in 
most  cases  the  note  or  bill  is  not  mature  at  the  precise  time 
mentioned  in  it,  but  three  days  after.     This  allowance  is  usually 


Bordeaux,  30  days  after  date. 
Brabant,  1  month       "        " 
Brazil,  none. 

Bremen,  1  month  after  date. 
Bruges,  "  "       " 

Buenos  Ayres,  none. 
Cadiz,  2  months  after  date. 
Constantinople,  31  days  after  date. 
Dantzic,  14  days  after  acceptance. 
Flanders,  1  month  after  date. 


Madrid,  60  days  after  date. 
Malta,     30     "        "       " 
Middleburgh,  1  month  after  date. 

Milan,  3      "  "  " 

Naples.  3      "  "  " 

Netherlands,    1      "  "  " 

Oporto,  60  days        "  " 

Palermo,  3  months    "  " 

Paris,  1       "         "  " 

Portugal,        60  days        "  " 


Florence,  30  days  after  date  (sometimes  Rio  de  Janeiro,  none. 

accounted  treble  usance).  Rotterdam,  1  month  after  date. 

France,  30  days  after  date.  Rome,  3      "  "       " 

Frankfort-on-the-Main,  14  days  after  ac-  Rouen,         1      "         "      " 


ceptanee. 
Geneva,  30  days  after  date. 
Genoa,  3  months    "       " 
Germany,  30  days  "       " 
Gibraltcr,  2  months  after  sight. 

Hamburg,  1      "  "    date. 

HoUand,     1      "  "       " 

Italy,  3      "  "       " 

Leghorn,     3      "  "       " 

Leipsic,     14  days  "    acceptance. 

Lisbon,     60     "  "     date. 

Lisle,  1  month  "      " 

Lucca,       3      "  "      "  (sometimes). 

Between  Amsterdam  and 
Brabant,  1  month. 
Breshui,  14  days  after  sight. 
Flanders,  1  month. 
France,      1       " 
Frankfort,  14  days  after  sight. 
Germany,  14     "        "        " 
Hamburg,  14     "        "        " 

Uetween  Altona,  Hamburg,  and 
Fiuine,  2  months  after  date. 
France,]        "         "       " 
Gi.'rniany,  14  days  after  sight. 
Holiaiiil,    1  month  after  date. 


St.  Petersburg,  none. 

Seville,     60  days  after  date. 

Smyrna,  31     "       "      " 

Spain,      60     "       "       "  (except  Cadiz) 

Sweden,  30     "       "    sight. 

Switzerland,  30  days  after  siglit. 

Trieste,  14     "       *'     acceptance. 

Venice,  3  months  after  date. 

Vienna,  14  days  after  acceptance. 

West  Indies,  31  days  after   " 

Zante,  3  months  after  date. 

Zealand,  1  month  after  date. 


Holland,  1  month. 

Italy,       2      " 

Nuremberg,  14  days  after  sight. 

Portugal,  2  months. 

Spain,       2       " 

Vienna,  14  days  after  sight. 

Zealand,  1  month. 


Italy,        2  months  after  date. 
Portugal,  2       "         "       " 
Spain,       2       "        "      " 
Trieste,     2       "        "      " 

Between  Amsterdam,  Antwerp,  Rotterdam,  and 
Dantzic,  30  days  after  sight.  Germany,  14  clays  after  sight 

England,  1  month  after  date.  Italy,  2  months  after  date. 

France,     I        "         "       "  Konigsberg,  30  days  after  sight. 


CH.  XI.]  AT   WHAT   TIME   DEMAND   SHOULD    BE   MADE.  39l 

called  grace  ;  which,  as  its  name  imports,  was  originally  a  favor, 
and  could  not  bo  demanded  as  a  right  by  the  payer,  but  depended 
upon  the  inclination  oi"  the  payee. (y) 

It  appears  that  in  England,  from  an  early  time,  the  length  of 
this  })criod  in  foreign  bills  was  three  days, (it;)  and  that  it  was  for 
a  short  time  somewhat  doubtful  whether  any  grace  was  given  in 
the  case  of  inland  bills  ;  (x)  or  if  given,  whether  it  was  three  days 
or  a  "reasonable  time."(7/)     It  may  be  supposed  that  in  foreign 

Portugal,  2  months  after  date.  Spain,  2  months  after  date. 

Riga,  30  days  after  sight.  Switzerland,  14  days  after  sight. 

Genoa,  abolished  by  the  Code  Napoleon. 

Holland,  Venice,  and  Hamburg,  2  months  after  date. 

Between  Leghorn  and 
Hamburg,  2  months  after  date.  Paris,  I  month  after  date. 

Holland,     2        "  "       "  Spain,         2       "  "       " 

Lisbon,       3        "  "       " 

Between  Lisbon,  Oporto,  and 
France,  60  days  after  sight.  Italy,  3       "  "       " 

Germany,  2  months  after  date.  Spain,  15  days  after  sight. 

Holland,    2       "  "       " 

Palermo  and  most  places,  except  London,  21  days  after  sight. 

(v)  Chitty  on  Bills,  10th  ed.,  London,  2.58. 

(iv)  Hill  V.  Lewis,  Skin.  410  (1694),  Holt,  C  J.  In  Tassell  v.  Lewis,  1  Ld.  Raym 
743  (1696),  it  is  said  that,  "In  case  of  foreign  bills,  the  custom  is  that  three  days 
are  allowed  for  payment  of  them ;  and  if  they  are  not  paid  upon  the  last  of  the  said 
days,  the  party  ought  immediately  to  protest  the  bill  and  return  it ;  and  by  this  means 
the  drawer  will  be  charged ;  but  if  he  does  not  protest  it  the  last  of  the  three  days, 
which  are  called  the  days  of  grace,  there,  although  he  upon  whom  the  bill  is  drawn 
fails,  the  drawer  will  not  be  chargeable  ;  for  it  shall  be  reckoned  his  folly  that  he  did 
not  protest."     See  Coleman  v.  Sayer,  infra,  note//;  Brown  v.  Harraden,  4  T.  R.  148. 

(x)  In  Cramlington  v.  Evans,  2  Vent.  307  (1691),  an  action  agaipst  the  drawer,  the 
bill  was  drawn  in  Newcastle,  Nov.  10th,  1685,  payable  in  twenty-five  days  from  date. 
It  was  alleged  for  error,  that  "  there  were,  as  appears  by  the  bill  of  exchange,  twcnt}'- 
five  days  given  for  the  payment  of  it  after  the  date  of  the  bill ;  whereas  here  the  request 
and  refusal  is  upon  the  twenty-fifth  day  after  the  date.  Sed  non  allocatur:  for  as  the 
bill  is  set  forth,  it  is  to  pay  the  money  ad  viginti  et  quinque  dies  post  datum ;  and  this 
can't  be  if  not  paid  at  the  five  and  twentieth  day."  There  is  no  mention  of  grace 
made  in  this  case. 

(y)  In  Tassell  v.  Lewis,  1  Ld.  Raym.  743  (1696),  it  i.s  said  that  "  There  is  no  cus- 
tom for  the  protest  of  inland  bills  of  exchange,  nor  any  certain  time  assigned  by  the 
custom  for  the  payment  of  them  ;  therefore,  the  money  ought  to  bo  demanded  in  a  rea- 
sonable time  ;  and  then,  if  it  is  not  paid,  the  drawer  will  be  charged."  But  in  Coleman 
V.  Sayer,  1  Barnard.  303,  "  the  other  matter  then  came  into  debate  whether  three  days 
of  grace  in  certain  are  allowable  upon  inland  bills,  as  well  as  upon  foreign  ones,  or 
whether  only  a  reasonable  time.  The  Common  Sergeant  and  the  foreman  of  the  jury 
said  that  the  constant  practice  in  the  city  was  to  allow  them  in  one  case  as  well  as  the 


392  NOTES   AXD   BILLS.  [CH.  XI. 

bills  a  reasonable  time  was  at  first  allowed,  wliicb  custom  was 
finally  limited  to  three  days,  for  the  sake  of  uniformity  and  pre- 
cision, and  that  the  same  thing  happened  in  inland  bills.  It  was 
also  for  some  time  a  "  vexata  questio  in  Westminster  Hall " 
whether  a  promissory  note  was  entitled  to  grace;  (2)  but  this  was 
finally  settled  in  the  year  1791,  by  a  decision  of  the  Court  of 
King's  Bench,  where  it  was  held  that  the  three  days  were  to  be 
allowed  on  promissory  notes,  and  on  inland  as  well  as  foreign 
bills.(a) 

In  some  of  the  States  of  this  country,  the  courts  early  held 
that  foreign  bills  alone  were  entitled  to  grace,  and  denied  the 
indulgence  to  inland  bills  and  promissory  notes  ;  but  in  all  these 

other.  Upon  which  the  Chief  Justice  said  that  then  he  would  not  alter  it;  though  he 
observed  that  he  remembered  two  cases,  one  in  Lord  C.  J.  Kelijm/a^s  time,  the  other  in 
Lord  Holt's,  where  they  were  both  of  opinion  that  in  inland  bills  it  is  only  a  reason- 
able time  ;  and  what  that  is,  the  jury  ought  to  determine."  In  Brown  v.  Harraden,  4 
T.  R.  148,  151,  Lord  Keni/on  said :  "  It  is  extremely  clear  that  on  foreign  bills  of  ex- 
change three  days  of  grace  are  allowed.     I  think  it  is  as  little  to  be  doubted  tliat  they  are 

also  allowed  on  inland  bills When  it  is  stated  in  1  Ld.  Raym.  743,  tiiat  there  was 

no  certain  time  assigned  by  the  custom  of  merchants  for  the  payment  of  inland  bills  of 
exchange,  it  only  shows  that  tlie  judges  were  very  cautious  on  the  subject ;  but  now  it 
has  been  settled  for  more  timn  half  a  century  that  tiicy  are  payable  at  tiie  same  time  as 
foreign  bills  of  exchange." 

(?)  In  May  ».  Cooper,  Fortes.  376  (1722),  the  defendant  pleaded  a  tender,  on  Au- 
gust 1st,  of  a  note  dated  July  21st,  payable  in  ten  days.  Held  a  day  too  late.  In  Dc.\- 
laux  V.  Hood,  Buller,  N.  P.  274  (1752),  Denison,  J.  said  there  were  no  days  of  grace 
on  a  note  as  there  are  on  a  bill  of  exchange  ;  but  the  jury  said  it  was  commonly  un- 
derstood that  there  were  three  days  of  grace,  and  therefore  thought  the  dem.and  in 
time  ;  but  the  judge  said  the  law  was  otherwise,  and  directed  them  to  find  for  tiie  de- 
fendant. In  Brown  v.  Harraden,  4  T.  R.  148,  Buller,  J.  said  :  "  Tlie  question  wliether 
tiiree  days  of  grace  shall  or  shall  not  be  allowed  on  promissory  notes  has,  for  many  years 
past,  been  a  vexata  questio  in  Westminster  Hall.  But  the  practice  among  merchants  and 
bunkers  has  been  uniform  in  favor  of  tiie  indulgence.  The  doubt  which  has  arisen  in  our 
own  time  has  been  principally  founded  on  the  determination  of  Mr.  J.  Denison,  at  Nisi 
Prius  ;  though  it  ajjpears  that  the  jury  there  said  tiiat  the  judge's  oi)inion  was  against 
the  practice  ;  and  that  case  has  always  been  handed  down  in  jirint  with  a  qmvre.  And 
t-incc  I  have  sat  upon  tlie  bench,  I  have  always  held  at  Nisi  Prius,  that  the  tiiree  days 
are  allowed,  whether  the  question  has  arisen  on  the  supposed  laches  of  the  holder,  or  in 
eases  of  usury." 

(a)  Brown  v.  Harraden,  4  T.  R.  148,  an  action  by  an  indorsee  against  the  iudorser 
of  a  hill  ])ayabie  November  2d.  Tiie  defendant  pleaded  a  tender  on  Nov.  5th.  l{epli- 
cation,  that  the  defendant  did  not  tender  \moY  to  Nov.  4th.  Rejoinder,  tluU  the  de- 
fendant was  not  liable  before  the  5th.  Surrtjoinder,  tiiat  he  was  so  liahle.  General 
demiiner  and  joinder.  Verdict  for  the  defendant  In  Leftley  v.  Mills,  4  T.  R.  170, 
three  days  were  allowed  on  an  inland  bill.  The  rule  as  stated  in  tlie  text  is  the  gen- 
eral rule.  As  to  the  kinds  of  notes  and  bills  tiiat  are  not  entitled  to  grace,  see 
iiij'iu,  p.  393,  notes  b  and  c. 


CH.  XI.]  AT   WHAT   TIME   DEMAND   SHOULD    BE   MADE.  393 

the  matter  was  soon  regulated  by  statute. (/>)  In  others,  the 
courts  adopted  the  rule  re(]uiring'  the  allowance  of  grace  on  in- 
land bills  and  promissory  notes,  as  a  part  of  the  common  law, 
without  any  express  statutory  regulations  on  the  subject. (c) 


[b]  In  Maine  and  Massachusetts,  "a  note  of  liand  is  not  entitled  to  grace  unless  it  is 
expressly  payal)le  with  grace," — a  dictum  of  Parsons,  C.  J-,  Jones  v.  Tales,  4  Mass. 
245.  But  "when  the  court  gave  the  opinion"  in  this  case  as  to  grace,  "it  was  new. 
Gentlemen  old  in  practice  understood  that  we  had  adopted  the  English  law  as  to  this, 
as  we  had  the  other  parts  of  that  law  in  regard  to  negotiable  contracts.''  I  Dane,  Abr. 
41.3,  §  7.  In  Maine,  foreign  bills  were  alwajs  entitled  to  grace,  but  inland  bills  and  prom- 
issory notes,  by  a  statute  passed  in  1824,  only  when  "discounted  at  any  bank,  or  left 
there  for  collection."  Pickard  v.  Valentine,  13  Maine,  412;  McDonald  v.  Smiih,  14 
id.  99;  Central  Bank  v.  Allen,  16  id.  41.  A  note  payable  at  a  bank,  but  not  dis- 
counted or  left  there  for  collection,  was  not  entitled  to  grace  in  1837.  Buck  v.  Apple- 
ton,  14  id.  284.  But  now,  by  R.  S.  18.57,  p.  273,  grace  is  allowed  on  "any  promissory 
note,  inland  bill  of  exchange,  draft,  or  order  for  the  payment  of  money,  payable  in  this 
State  at  a  future  day,  or  at  sight,  and  not  on  demand."  In  Mussachusetls,  in  1824,  a 
statute  was  passed  allowing  grace  on  bills  of  exchange  payable  within  this  State  at 
sight  or  at  a  future  day  certain  ;  and  on  promissory  negotiable  notes,  ordei"s,  and  drafts, 
payable  within  this  State  at  a  future  day  certain,  in  which  there  is  not  an  express  stipu- 
lation to  the  contrary.  Bills  of  exchange,  notes,  or  drafts,  payable  on  demand,  are 
expressly  excepted  from  the  foregoing  provisions.  Gen.  Stat.  1860,  p.  294.  In  Ohio, 
upon  notes  payable  at  banks,  and  upon  commercial  bills  of  exchange,  it  is  a  well- 
established  usage  to  allow  days  of  grace.  In  relation  to  mere  ordinary  notes  of  hand, 
no  such  usage  is  understood  to  prevail.  Sharp  v.  Ward,  7  Ohio,  223  (183.5) ;  Isham  v. 
Fox,  7  Ohio  State,  317.  But  by  a  statute  passed  in  1839,  grace  was  allowed  on  all  bonds, 
notes,  or  bills  made  negotiable  by  statute.  11.  S.  1854,  p.  576.  In  an  act  passed  in  1857, 
"  all  bonds,  notes,  or  bills,  payable  at  a  day  certain,  after  date  or  after  sight,  made  ne- 
gotiable," are  entitled  to  grace.  Laws  of  1857,  p.  76.  In  Ahrth  Carolina,  grace  was 
allowed,  except  between  the  original  parties.  Jarvis  v.  McMain,  3  Hawks,  10  (1824). 
See  State  Bank  v.  Smith,  3  Murphey,  70.  By  statute  passed  in  1848,  "  all  bills  of  ex- 
change payable  within  the  State,  at  sight,  or  at  a  future  day  certain,  in  which  there  is 
no  express  stipulation  to  the  contrary,"  are  entitled  to  grace.  Bills,  notes,  and  drafts, 
on  demand,  are  excepted.  Rev.  Code,  1855,  p.  111.  In  the  Territory  of  Arkansas,  \n 
McLain  v.  Rutherford,  Hempst.  C.  C  47  (1827),  it  was  held,  that  "the  custom  of 
luercbants  (as  to  days  of  grace)  does  not  apply  to  the  maker  and  the  payee";  in 
Cook  r.  Gray,  id.  84  (1829),  that  "  days  of  grace  do  not  attach  to  promissory  notes." 

(c)  In  Alabama,  grace  was  allowed  in  1824  on  a  promissory  note.  Crenshaw  ». 
M'Kiernan,  Minor,  295.  The  first  statute  on  the  subject  was  passed  in  1828.  Now, 
"  bills  of  exchange,  and  promissory  notes,  payable  in  money,  at  a  bank,  or  at  private 
banking-houses,  are  governed  by  the  general  commercial  law."  "  All  other  instru- 
ments, payable  in  money,  at  a  bank  or  private  banking-houses,  are  governed  by  the 
commercial  law,  as  to  days  of  grace,  protest,  and  notice.  No  days  of  grace  are  al- 
lowed on  any  contract  except  those  enumerated."     Code,  1852,  p.  317. 

In  Arkansas,  in  1838,  a  statute  was  in  force,  enacting  that  "the  remedy  on  bills, 
foreign  and  inland,  and  on  promissory  notes  or  obligations  payable  in  bank,  shall  be 
governed  by  the  rules  of  the  law  merchant,  as  to  days  of  grace,  protest,  and  notice." 
Dig.  of  Stat.  1858,  p.  211.     There  is  no  reported  case  on  the  subject  prior  to  1838. 

In  California,  by  an  act  passed  in  1851,  grace  "shall  be  allowed,  except  on  sight  bills 


394  NOTES  AND   BILLS.  [CH.  XI. 

Most,  if  not  all,  commercial  countries  now  require,  as  a  matter 
of  strict  right,  the  days  of  grace,  which  are  added  to  the  time 
that  a  note  or  bill  has  to  run.  Chief  Justice  Marshall  declared 
that  the  allowance  of  days  of  grace  is  a  usage  which  pervades 


or  drafts."  Woods,  Dig.  1857,  p.  74.  There  is  no  reported  case  on  the  subject  prior 
to  this  time. 

In  Connecticut,  "  by  the  imraemorial  custom  of  merchants,  sanctioned  by  judicial 
decisions,  notes  and  bills  payable  at  banks  are  entitled  to  grace."  Sioift,  C.  J.,  Shep- 
ard  V.  Hall,  1  Conn.  329  (1815).  So  on  all  negotiable  promissory  notes  and  bills. 
Norton  v.  Lewis,  2  id.  478  (1818).  The  only  statute  respecting  grace  is  with  regard  to 
holidays. 

In  Delaware,  grace  was  recognized  as  early  as  1832.  Bank  of  Wilmington  v-  Cooper, 
1  Harriog.  10.  The  only  statute  on  the  subject  is  one  denying  grace  to  "checks, 
notes,  drafts,  or  bills,  payable  without  time  or  at  sight."     Rev.  Code,  1852,  p.  183. 

In  Florida,  grace  was  allowed  on  a  promissory  note  in  1847.  Spann  v.  Baltzcll,  1 
Fla.  .301.     There  is  no  statute. 

In  Georgia,  the  only  act  on  the  subject  denies  grace  to  sight  bills  and  drafts,  and 
specifies  certain  days  as  holidays.     R.  S.  1857,  p.  278. 

In  Illinois,  in  the  absence  of  any  statute,  grace  was  allowed  on  a  bill  of  exchange  in 
1858,  on  the  ground  that  the  law  merchant  was  part  of  the  common  law  of  the  State. 
Cook  V.  Renick,    19  111.  598. 

In  Indiana,  grace  was  allowed  in  1820,  in  Piatt  v.  Eads,  1  Blackf.  81,  where  it  ex- 
pressly appeared  that  there  was  no  statute.  By  an  act  passed  in  1849,  "'  on  all  bills  of 
exchange,  payable  within  this  State,  whether  sight  or  time  bills,  three  days  of  grace  shall 
be  allowed."     R.  S.  1852,  p.  379. 

In  Iowa,  grace  was  allowed  in  1841,  on  a  promissory  note  without  any  express 
statute.  Hudson  v.  Matthews,  Morris,  94.  "  Three  days  of  grace  are  allowed  on  bills 
of  exchange,  according  to  the  custom  of  merchants,  but  not  on  any  other  instruments  ; 
and  a  demand  at  any  time  during  the  three  days  of  grace  will  be  sufficient  for  the  pur- 
pose of  charging  the  indorser."  Code,  1851,  p.  150.  But  by  an  act  passed  in  1853, 
"  grace  shall  be  allowed  upon  bills  and  notes  executed  and  payable  within  this  State, 
according  to  the  principles  of  the  law  merchant,  and  notice  of  non-acceptance  or  non- 
payment, or  both,  of  said  instruments,  shall  be  required  according  to  the  rules  and  prin- 
ciples of  the  commercial  law."  Laws  of  1853,  p.  188.  Revision  of  1860,  p.  320. 
The  act  of  1853  repeals  the  provisions  of  the  Code,  so  that  a  demand  on  the  first  day 
of  grace  is  premature.     Edgar  v.  Greer,  8  Clarke,  394. 

In  Kcnluckij,  grace  was  allowed  in  1848.  Stradcr  v.  Batcliclor,  8  B.  Mon.  1G8.  Thero 
is  no  statute. 

In  Louisiana,  by  a  statute  passed  in  1805,  "instead  of  the  ten  days  of  grace 
which  have  been  heretofore  allowed,  three  days  only  shall  be  hereafter  allowed."  Dig. 
1828,  Vol.  I.  p.  93.  "  Upon  all  bills  of  exchange  and  promissory  notes  made  nego- 
tiable by  law,  or  by  usage  and  custom  of  merchants  in  tliis  State,  three  days  of  grace 
aluill  be  allowed."    R.  S.  1856,  p.  46. 

In  Maryliind,  in  an  action  by  an  indorsee  against  the  maker  of  a  note,  dated  Sop- 
tcmbir  19tli,  payable  at  twelve  months,  the  writ  was  served  on  the  defendant  Septem- 
ber 20tli,  and  the  jjlaintiff  recovered.  Ponsonby  v.  Nicholson,  4  Harris  &  ^L  72.  This 
was  decided  in  1797,  and  no  reasons  are  given.  But  in  Beck  v.  Thomjison,  4  Harris  & 
J.  531  (1819),  a  count  in  a  declaration  on  a  promissory  note  was  held  bad,  because  it 
alleged  a  demand,  without  allowing  for  grace,  "  three  days  before  the  note  bccam« 


CH.  XI.]  AT    WHAT    TIME   DEMAND    SHOULD    BE   MADE.  395 

the  whole  commercial  world.  In  the  same  case  he  said  that  it 
was  universally  understood  to  enter  into  every  bill  or  note  of  a 
mercantile  character,  and  to  form  so  completely  a  part  of  the  con- 
tract, that  the  bill  does  not  become  due,  in  fact  or  in  law,  on  the 
day  mentioned  on  its  face,  but  on  the  last  day  of  grace ;  and  a 


due,  according  to  the  established  rule  of  law."    Martin,  J.    See  Jackson  v.  Union  Bank, 
6  Harris  &  J.  146 ;  Flack  v.  Green,  3  Gill  &  J.  474.     There  is  no  statute. 

In  Michiyan,  a  statute  in  the  same  terms  as  that  of  Massachusetts,  supra,  p.  393,  note 
b,  was  in  force  as  early  as  1838.  Comp.  Laws,  1857,  p.  408.  There  is  no  reported 
case  on  the  point  prior  to  that  time. 

In  Minnesota,  a  statute  similar  to  that  in  Massachusetts  was  in  force  in  1858,  Stat. 
1858,  p.  376,  prior  to  any  reported  case  on  the  subject. 

In  Mississippi,  grace  was  allowed  in  1842,  in  Fleming  ji.  Fulton,  6  How.  Miss.  473, 
where  it  was  contended  that  only  foreign  bills  were  entitled  to  it,  and  that  four  days 
was  the  proper  time  ;  but  both  objections  were  overruled.  But  in  Harrel  v.  Bixler, 
Walker,  176,  where  a  suit  was  brought  on  a  note  by  the  indorsee  against  the  indorser, 
it  was  held  that  the  defendant  was  not  entitled  to  grace.     There  is  no  statute. 

In  Missouri,  grace  was  allowed  on  a  promissory  note  in  1823,  in  Schlatter  v.  Rector, 
I  Misso.  286.    The  only  statute  on  the  subject  is  one  prohibiting  grace  on  bills  at  sight. 

In  Neiv  Hampshire,  in  Leavitt  v.  Simes,  3  N.  H.  14,  Richardson,  C.  J.  said,  with  refer- 
ence to  a  promissory  note,  that  it  was  well  settled  that  the  demand  ought  to  be  made 
on  the  last  day  of  grace.  It  appeared,  in  this  case,  that  four  out  of  the  five  banks  in 
Portsmouth,  in  one  of  which  the  note  in  suit  had  been  left  for  collection,  were  in  the 
habit  of  allowing  grace.  This  decision  was  rendered  in  1823,  and  in  1828  a  statute 
was  passed  enacting  that  "nobill  of  exchange,  negotiable  promissory  note,  order,  or 
draft,  except  such  as  arc  payable  on  demand,  shall  be  payable  until  days  of  grace  have 
been  allowed  thereon,  unless  it  appear  in  the  instrument  that  it  was  the  intention  of  the 
parties  that  days  of  grace  should  not  be  allowed."     Comp.  Stat.  1853,  p.  460. 

In  New  Jersey,  in  Ferris  v.  Saxton,  1  Southard,  1,  17  (1818),  Kirkpatrick,C-  J.  said 
that  it  was  well  settled  that  the  day  on  which  a  note  became  due  was  on  the  third  day 
of  grace.     The  only  €tatute  relates  to  holidays. 

In  New  York,  grace  was  mentioned  in  Leffingwell  v.  White,  1  Johns.  Cas.  99  (1799)  ; 
and  in  Corp  v.  M'Comb,  id.  328  (1800),  the  court  say,  that  "  notice  to  the  indorser  on 
the  third  day  of  grace,  after  a  dumand  made  of  the  maker,  and  his  default  of  payment, 
is  good."     The  only  statute  refers  to  holidays. 

In  North  Carolina,  "  All  bills  of  exchange  payable  within  the  State,  at  sight,  or  at 
a  future  day  certain,  in  which  there  is  no  express  stipulation  to  the  contrary,  shall  be 
entitled  to  days  of  grace,  as  the  same  are  allowed  by  the  custom  of  merchants  on  foreign 
bills  of  exchange,  payable  at  the  expiration  of  a  certain  period  after  date  or  sight : 
Provided,  that  no  days  of  grace,  shall  be  allowed  on  any  bill  of  exchange,  promissory 
note,  or  draft,  payable  on  demand."     Rev.  Code,  1854,  p.  111. 

In  Oregon,  the  provisions  of  the  Massachusetts  statute  were  in  force  as  early  as  1855, 
prior  to  any  reported  case.     Stat.  1855,  p.  531. 

In  Pennsylvania,  it  was  adopted  as  early  as  1792.  Bank  of  North  America  v. 
M'Jvnight,  1  Yeates,  145.     The  only  statute  denies  grace  to  bills  at  sight. 

In  Rhode  Island,  in  Cook  v.  Darling,  2  R.  I.  385,  it  was  contended  that  the  note  in 
suit  was  not  entitled  to  grace,  because  not  payable  at  a  bank  ;  but  the  court  overruled 
the  objection,  and  allowed  the  grace.  There  is  no  statute  on  the  subject,  except  ona 
with  regard  to  holidays  and  one  denying  it  to  bills  at  sight. 


39b  NOTES   AXD   BILLS.  [CH.  XI. 

deinand  of  payment  previous  to  that  day  would  not  authorize  a 
protest,  or  charge  the  drawer  of  the  bill.(c/)  The  number  of  days 
throughout  the  United  States  and  England  (e)  is  three ;  and  the 
presumption  in  all  cases  would  be  that  that  is  the  number  to  be 
allowed. (/)     A  usage  formerly  prevailed  in  the  banks  of  the  Dis- 

In  South  Carolina,  grace  was  adopted  in  1818,  in  Lovel  v.  Wartenburgh,  1  Nott  & 
McC  83.     There  is  no  statute. 

In  Tennessee,  grace  was  recognized  in  1823,  in  Broddie  v.  Searcy,  Peck,  183.  The 
only  statute  denies  grace  to  bills  at  sight,  and  refers  to  holidays. 

In  Texas,  by  an  act  passed  in  1848,  three  days  were  allowed  on  "all  bills  of  ex- 
change and  promissory  notes,  assignable  and  negotiable  by  law,  provided  this  shall 
e.xtend  only  to  contracts  between  merchant  and  merchant,  their  factors  and  agents." 
Hartley,  Dig.  18.50,  p.  773.  There  is  no  reported  case  on  the  subject  of  grace  prior  to  this 
statute. 

In  Vermont,  in  Nash  v.  Harrington,  2  Aikens,  9  (1826),  the  court  decided  to  "adopt 
the  law  merchant  touching  the  necessity  of  demand  upon  the  maker  and  notice  back 
to  the  indorser,  in  order  to  charge  him.  The  point  was  raised,  as  to  the  adoption  of 
grace,  in  Ripley  v.  Greenleaf,  2  Vt.  129  (1829),  but  not  decided,  as  the  counsel  had 
agreed  that  it  should  be  allowed  By  a  subsequent  act,  "  all  bills  of  exchange, 
drafts,  and  promissory  notes,"  executed  or  payable  in  that  State,  are  entitled  to  grace. 
Contracts  payable  on  demand,  or  in  any  other  way  than  money,  are  excepted.  By  an 
act  passed  in  1850,  contracts  payable  at  sight  are  excepted.     Comp.  Stat.  1850,  p.  443. 

In  Virginia,  there  is  no  statute. 

In  Wisconsin,  a  statute  similar  in  its  terras  to  that  of  Massachusetts  was  in  force  as 
early  as  1849.  R.  S.  1838,  p.  409.  Prior  to  this  time  there  is  no  reported  case  on  the 
subject. 

{(i)  Marshall,  C  J.,  Bank  of  Washington  v.  Triplett,  1  Pet.  25.  Notes  and  bills  on 
demand  should  be  excepted.  In  Savings  Bank  of  New  Haven  v.  Bates,  8  Conn.  505, 
Bissell,  J.  said  :  "It  is  too  well  settled  to  admit  of  dispute,  that,  in  regard  to  negotiable 
notes,  the  days  of  grace  make  a  part  of  the  original  contract.  Such  a  note,  payable 
by  the  terms  of  it  in  sixty  days,  is,  in  law,  a  note  payable  in  sixty-tliree  days.  Before 
the  expiration  of  tliat  time,  no  demand  of  payment  can  be  made,  and  if  negotiated  on 
the  sixty-first  or  sixty-second  day,  it  is  not  negotiated  when  overdue."  See  also 
Thomas  v.  Shoemaker,  6  Watts  &  S.  179,  Kennedy,  J.  In  Cook  v.  Darling,  2  R.  I. 
385,  it  was  held  that  all  negotiable  promissory  notes,  whether  payable  at  a  bank  or  not, 
are  entitled  to  grace,  unless  there  is  a  usage  to  the  contrary;  and  the  burden  of  proving 
such  usage  is  upon  the  party  attempting  to  set  it  up.  In  DoUfus  v.  Frosch,  1  Denio, 
367,  it  was  lield  that  commercial  paper  payable  in  France  on  a  day  certain  will,  in  the 
absence  of  any  proof  respecting  the  law  of  that  country,  bo  considered  as  i)ayable  on 
the  third  day  of  grace. 

{(■)  The  same  is  true  of  Scotland,  Wales,  and  Ireland.  Chitty  on  Bills,  10th  ed., 
London,  p.  259. 

(/)  Wood  V.  Corl,  4  Met.  203.  Shaw,  C.  J.  said  :  "  Another  ground  of  defence 
was,  that  it  docs  not  appear  that,  by  the  law  of  Ohio,  three  days  of  grace  are  allowed  ; 
and  therefore  it  is  not  shown  that  a  demand  on  the  third  day  was  right.  But  we  Qon- 
sidcr  it  well  settled  that,  by  the  general  law  merchant,  which  is  part  of  the  common 
law,  as  prevailing  throughout  the  United  States,  in  tlic  absence  of  all  proof  of  particular 
contract  or  special  custom,  three  days  of  grace  arc  allowed  on  bills  of  ext-hangc  and 
promissory  notes;    and  when   it  is  relied  upon  that,  by  special  custom,  no  grac«\  is 


CH.  XI.]  AT   WHAT   TIME   DEMAND    SHOULD   BE   MADE.  397 

trict  of  Columbia,  not  to  make  a  demand  of  notes  discounted  by 
them,  or  left  with  them  for  collection,  until  the  day  after  the  last 
day  of  grace,  thus  allowing  four  days ;  (g-)  but  this  custom  has 
since  been  changed  so  as  to  conform  to  the  general  commercial 
usage  of  demanding  payment  on  the  third  day.(/<)     It  was  like- 


allowed,  or  any  other  term  of  grace  than  three  days,  it  is  an  exception  to  the  general 
rule,  and  the  proof  lies  on  the  party  taking  it."  So  also  Dollfus  v.  Frosch,  1  Denio, 
367,  supra,  note  d ;  Lucas  v.  Ladew,  28  Misso.  342.  But  in  Goddin  v.  Shipley,  7  B.  Mon. 
57.5,  a  contrary  doctrine  would  seem  to  be  laid  down  by  Marshall,  C.  J.,  who  said  : 
"  The  note  was  presented  tln-oe  days  after  the  expiration  of  the  time  mentioned  for 
payment,  and  probably  on  the  last  day  of  grace.  But  the  number  of  days  of  grace  is 
fixed  by  the  local  law,  and  not  by  the  law  merchant,  which  refers  it  to  the  law  or  usage 
of  the  place  or  country  where  the  instrument  is  payable.  And  there  is  no  evidence  of 
the  law  of  Missouri  on  this  subject,  none  at  least  which  would  authorize  the  court  to 
withdraw  the  fact  from  the  jury."  In  this  case,  the  only  dispute,  as  to  fact,  was  whether 
the  note  was  payable  in  Missouri ;  and  the  judge  at  Nisi  Prius  instructed  the  jury  to 
find  for  the  plaintiff,  if  they  believed  that  the  note  was  payable  in  Missouri.  He  must 
have  acted  on  the  presumption  that  the  days  of  grace  there  were  three ;  but  this  instruc- 
tion was  held  eiToneous. 

(g)  Renner  v.  Bank  of  Columbia,  9  Wheat.  .581.  It  appears  that  the  Bank  of  Co- 
limibia  had  adopted  this  practice  from  its  establishment  in  1793,  and  that  it  has  been 
the  universal  custom  of  all  the  banks  in  Washington  and  Georgetown,  for  more  than 
twenty  years.  The  indorser  was  acquainted  with  it  when  he  indorsed  the  note,  and  a 
demand  on  the  maker  at  the  fourth  day  was  held  sufficient  to  charge  him.  It  was  also 
held  that,  although  the  declaration  does  not  allege  the  custom,  yet  if  proof  of  it  is  ad- 
mitted, without  objection,  a  judgment  for  the  plaintiff  is  not  erroneous.  The  same 
points  were  decided  in  Bank  of  Columbia  v.  Magruder,  6  Harris  &  J.  172,  where  it  was 
held  that  the  proper  mode  of  procedure,  where  the  custom  was  not  alleged,  was  by  way 
of  demurrer,  on  exception  to  the  admissibility  of  the  evidence  at  the  trial.  In  Mills  v. 
Bank  of  U.  S.^  11  Wheat.  431,  it  was  not  proved  that  the  indorser  knew  the  usage ;  but 
Story,  J.,  after  referring  to  the  case  of  Eenncr  v.  Bank  of  Columbia,  said:  "In  the 
present  case  the  court  is  called  upon  to  take  one  step  further;  and,  upon  the  principles 
and  reasoning  of  the  former  case,  it  has  come  to  the  conclusion,  that  when  a  note  is 
made  payable  or  negotiable  at  a  bank,  whose  invariable  usage  it  is  to  demand  payment 
and  give  notice  on  the  fourth  day  of  grace,  the  parties  are  bound  by  that  usage,  whether 
they  have  a  personal  knowledge  of  it  or  not.  In  the  case  of  such  a  note,  the  parties  are 
presumed,  by  implication,  to  agree  to  be  governed  by  the  usage  of  the  bank  at  which 
they  have  chosen  to  make  the  security  itself  negotiable."  So  Kaborg  v.  Bank  of  Colum- 
bia, 1  Harris  &  G.  231 ;  Bank  of  Columbia  v.  Fitzhugh,  id.  239.  In  Bank  of  Washington 
V.  Triplett,  1  Pet.  25,  it  was  held  that  there  was  no  distinction  in  this  respect  between  a 
note  or  bill  made  negotiable  at  a  particular  bank,  and  one  that  was  not.  In  this  case  the 
bill  was  drawn  in  Alexandria  on  Washington  ;  but  tiiis  was  held  not  to  vary  the  law,  as  the 
rule  respecting  grace  is  to  be  governed  by  the  usage  of  the  place  where  the  bill  is  paya- 
ble. The  bill  had  been  left  in  the  bank  for  collection.  In  Cookcndorfcr  v.  Preston, 
4  How.  317,  it  was  held  that  the  usage  only  applied  to  notes  discounted  by  the  banks. 

(h)  Cookendorfer  v.  Preston,  4  How.  317,  where  it  is  stated  that  the  change  was  made 
in  1818.  But  in  Adams  v.  Otterback,  15  How.  539,  it  is  said  tliat  the  Bank  of  Washing- 
ton has  changed  back  again  to  the  previous  custom  since  the  decision  of  Cookendorfer 
V.  Preston. 

VOL.  I.  34 


398  NOTES  AND   BILLS.  [CH.  XI. 

wise  the  custom  in  Louisiana  formerly  to  allow  ten  days ;  but 
this  has  been  changed  by  statute  to  the  regular  time.(i)  The 
number  of  days  on  the  continent  of  Europe  varies  from  none  to 
fifteen,  and  a  list  of  these  will  be  found  in  our  note.(j)  The 
number  to  be  allowed,  in  any  case,  and  the  regulations  concern- 
ing them,  will  be  governed  by  the  law  of  the  place  where  the 


(i)  The  statute  was  passed  in  1805,  supra,  p.  394,  note  c. 

(j)  Altona.     Sundays  and  holidays  included.     Bills  due  thereon  to  be  paid 

the  day  previous 12  days- 
Amsterdam,  abolished  by  Code  Napoleon None. 

Antwerp.  "  "         "  « « 

Austria.  None  on  bills  at  sight,  demand,  or  less  than  7  days  after  sight  or 
date;  bills  presented  after  maturity  to  be  paid  within  24  hours,  Sundays 
and  holidays  included,  and  if  the  last  day  of  grace  falls  thereon,  protest 

to  be  made  the  next  day. 3  days. 

Bahia.     See  Brazil 15  days. 

Barcelona. 14  days. 

Berlin.    Bills  due  on  Sunday  or  holiday  to  be  paid  the  day  previous.  .        .      3     " 

Bilboa 14     " 

Brazil.     Sundaj's  and  holidays  included.    Bills  due  thereon  to  be  paid  the  day 

previous. 15     " 

Bremen '         .         .         .         .      8     " 

Cadiz 6     " 

Dantzic 10     * 

Denmark. 8     " 

France.     Abolished  by  Code  Napoleon None. 

Frankfort-on-the-Main.     Sundays  and  holidays  not  included.     None  on  bills 

at  sight. 4  days. 

Geneva.  5     " 

Genoa.    Abolished  by  Code  Napoleon None. 

Germany. 8  days. 

Gibraltar 14     " 

Hamburg.     Same  as  Altona.     Called  respite  days 12    " 

Leghorn. None. 

Leipsic " 

Lisbon.    6  days  on  local ;  15  on  foreign  bills.     Bills  not  accepted  to  be  paid  the 

day  they  fall  due 6  or  15  days. 

Madrid 14     " 

Malta 13     " 

Naples.    Abolished  by  Code  Napoleon. None. 

Oporto.     Same  as  Lisbon. 6  or  15  days. 

Palermo. None. 

Rio  dc  Janeiro.     Same  as  Brazil.       .         , 15  davs. 

Rotterdam.     Abolished  by  Code  Napoleon. None. 

St.  Petersburg.  On  bills  payable  after  date,  10  days;  at  sight,  3  days;  at 
any  time  after  sight,  none;  on  bills  presented  after  maturity,  10  days.  Sun- 
days and  holidays  and  the  day  tlic  1)111  falls  due  included  ;  on  wliicli  days 
no  protest  can  bo  made,  but  payment  must  be  demanded  the  morning  of 
the  last  day  of  grace,  and  protest  made  before  sunset.    Vary  from  10  days  to  nona 


CII.  XI.]  AT    WHAT    TIME   DEMAND    SHOULD   BE   MADE.  399 

note  or  bill  is  payable; (A;)  though,  as  has  been  seen,  the  presump- 
tion is  that  three  days  are  allowed,  and  the  burden  of  proof  to 
show  that,  by  the  usage  or  law  of  the  place  of  payment,  no  grace 
at  all,  or  any  number  of  days  other  than  three,  is  allowed,  is  upon 
the  party  seeking  to  avail  himself  of  it.(/)  As  grace  was  itself 
originally  dependent  upon,  and  had  its  origin  in  usage,  it  would 
seem  that  evidence  of  usage  should  be  admissible,  in  any  case, 
either  to  lengthen  (m)  or  to  shorten  (n)  the  number  of  days, 
although  the  courts  in  New  York  at  one  time  seem  to  have  been 
inclined  to  exclude  such  evidence,  as  tending  to  control  the  set- 
tled law  with  respect  to  negotiable  paper,  (o)     One  exception, 


Spain.  Varying;  generally  8  on  inland,  and  14  on  foreign  bills.  But  see  Ca- 
diz. Bills  payable  at  sight,  or  at  a  fixed  date,  or  unaccepted  before  ma- 
turity, not  entitled Vary  from  6  to  14  days. 

Sweden 6     " 

Trieste.     Same  as  Austria 3     " 

Venice.     Sundays,  holidays,  and  days  when  banks  are  shut,  not  included.  6     " 

Vienna.     Same  as  Austria 3     " 

(k)  Bank  of  Washington  v.  Triplett,  1  Pet.  25  ;  DoUfus  v.  Frosch,  1  Denio,  367  ; 
Bowen  v.  Newell,  3  Kem  290,  2  Duer,  584.  This  case  arose  on  a  check  made  in  New 
York  and  payable  in  Connecticut.  By  the  law  of  the  former  State  grace  is  allowed,  by 
tlie  latter,  not.  Held,  that  the  check  was  not  entitled  to  grace.  On  the  first  trial  of 
this  case,  as  reported  in  5  Sandf.  326,  evidence  of  the  usage  of  banks  in  Connecticut 
not  to  allow  grace  was  admitted,  and  held  to  govern  the  question  whether  grace  should 
be  allowed.  This  was  reversed  in  the  Court  of  Appeals,  in  4  Seld.  190,  where  it  was 
held  that  the  evidence  was  inadmissible  to  control  the  rules  of  law  in  relation  to  such 
paper.  But  on  the  next  trial,  as  reported  in  2  Duer,  584,  the  usage,  being  found  gen- 
eral, was  admitted,  and  this  was  afiirmed  on  appeal,  in  3  Kern.  290.  It  seems  some- 
what difficult  to  reconcile  these  cases.  See  infra,  note  o.  Martin,  J.,  Vidal  v.  Thomp- 
son, 11  Mart.  La.  23 ;  Goddin  ?;.  Shipley,  7  B.  Mon.  575 ;  Lucas  v.  Ladcw.  28  Misso. 
342  ;  Ripley  v.  Greenleaf,  2  Vt.  129  ;  Bryant  v.  Edson,  8  id.  325.  In  this  case.  A,  of 
Massachusetts,  made  a  note  there,  payable  to  B,  of  New  Hampshire.  B  brought  the 
note  to  Vermont,  and  C,  of  Vermont,  signed  it  as  a  joint  maker.  The  note  was  dated 
in  Massachusetts.  By  the  laws  of  New  Hampshire  and  Massachusetts,  the  note  was 
entitled  to  grace  ;  by  the  law  of  Vermont,  not.  Held,  that  the  note  was  to  be  consid- 
ei'ed  as  made  and  payable  in  Massachusetts. 

(/)  Supra,  p.  396,  notes  d  and  f. 

(m)  See  the  cases  cited  supra,  p.  397,  note^r,  as  to  the  custom  of  banks  in  the  Dis- 
trict of  Columbia  to  allow  four  days. 

(n)  See  supra,  p.  396,  notes  d  and  /';  Kilgore  v.  Bulklcy,  14  Conn.  362,  where  Storrs, 
J.  said  :  "  The  question  how  fur  evidence  of  usage  is  admissible  to  show  that,  as  to  a 
particular  species  of  negotiable  paper,  it  is  entitled,  not  to  the  usual  number  of  days 
of  grace  allowed  by  the  general  law,  but  to  a  greater  or  less  number,  has  received  the 
most  deliberate  consideration  of  our  courts  of  the  highest  authority,  especially  on 
commercial  questions,  and  is  most  explicitly  and  decisively  settled."  Bowen  v.  Newell, 
S  Kern.  290,  2  Duer,  584  ;  City  Bank  v.  Cutter,  3  Pick.  414,  infra,  p.  402,  note  z. 

io)  Woodruff  V.  Merchants'  Bank,  25  Wend.  673,  where  Nelson,  C.  J.  said  :  "  The 


400  NOTES   AND   BILLS.  [CH.  XL 

however,  to  this  rule,  is,  that  no  evidence  of  usage  can  be  allowed 
to  control  the  terms  of  any  statutory  enactment  on  the  subject.  (/?) 
The  only  remnant  of  the  idea  of  favor  which  now  attaches  to 
the  days  of  grace  is  this :  If  a  note  or  bill  without  grace  falls 
due  on  Sunday,  or  any  recognized  holiday,  like  any  other  con- 
tract which  is  to  be  performed  on  that  day, (9)  it  is  not  payable 
until  the  next  succeeding  secular  day,  according  to  the  weight 
of  authority,(r)  because  the  payor  cannot   be  compelled  to  do 

eflPect  of  the  proof  of  usage,  as  given  in  this  case,  if  sanctioned,  would  be  to  overturn 
the  whole  law  on  the  subject  of  bills  of  exchange  iu  the  city  of  New  York.  We  need 
scarcely  add,  even  if  the  witnesses  were  not  mistaken,  and  the  usage  prevails  there  as 
testified  to,  it  cannot  be  allowed  to  control  the  settled  and  acknowledged  law  of  tlie 
State  iu  respect  to  this  description  of  paper."  This  case  was  affirmed  in  6  Hill,  174. 
The  case  of  Brown  v.  Newell,  4  Seld.  190,  is  to  the  same  effect.  The  only  ground  on 
which  these  cases  can  be  sustained  is  that  the  usage  was  not  sufficiently  proved.  But 
the  courts  did  not  seem  to  rest  their  decision  on  this  ground.  At  any  rate,  so  far  as 
the  admission  of  evidence  of  a  properly  established  custom  is  concerned,  they  are 
overruled  by  the  case  of  Bowen  v.  Newell,  3  Kern.  290.     See  supra,  p.  399,  note  k. 

(/))  Perkins  v.  Franklin  Bank,  21  Pick.  483. 

(7)  2  Parsons  on  Contracts,  179. 

(r)  Salter  v.  Burt,  20  Wend.  205  ;  Barrett  v.  Allen,  10  Ohio,  426,  Lane,  C.  J.  dis- 
senting. The  point  was  learnedly  discussed,  and  elaborate  opinions  on  both  sides  of  the 
question  given,  in  Avery  v.  Stewart,  2  Conn.  69,  where  a  majority  of  the  court,  con- 
sisting of  Sivijt,  C.  J ,  Trumbull,  Smith,  Drainnrd,  Goddard,  and  Gould,  JJ.,  decided 
that  a  tender  on  Monday  of  the  amount  due  on  a  note  payable  on  Sunday,  witliout 
grace,  was  valid,  Edmond,  Smith,  and  Ilosmer,  JJ.  dissenting.  Gould,  J.  said  :  '•  The 
note  iu  question  became  payable  on  Sunday.  But  payment  on  that  day  is  prohibited 
by  law.  The  question,  then,  arises,  whether  the  tender  should  have  been  made  on 
Saturday  or  Monday.  It  has  been  argued  that  the  d-ebtor  in  such  a  case  must,  at  his 
peril,  pay  or  tender,  at  all  events,  within  the  time  appointed.  It  would  seem  to  me 
quite  as  reasonable  to  say  that  he  cannot,  in  any  event,  be  required  to  pay,  nor  the 
creditor  to  accept  payment,  be/ore  the  time  appointed  It  is  true,  as  to  contracts  on 
whi'/h  days  of  grace  are  allowed,  that  if  the  last  of  those  days  is  Sunday,  payment 
must  be  made  on  Saturday.  But  the  allowance  of  grace  was  originally  a  mere  indul- 
gence, which  it  might  be  very  reasonable  to  qualify  with  greater  strictness  than  if  it 
had  been  demandable  as  a  matter  of  right.  At  any  rate,  the  allowance  of  grace  is  an 
anomaly,  and  tlie  rules  resulting  from  it  are,  of  course,  not  to  be  extended  by  analogy 
Upon  the  whole,  the  doctrine  which  appears  to  me  most  reasonable  is,  that  as  Sunday 
cannot,  for  tlie  purpose  of  performing  contracts,  be  regarded  as  a  day,  in  law ;  it  is,  a* 
to  that  jiurposc,  to  be  considered  as  stricken  from  the  calendar,  though  intervening 
Sundays  are  doubtless  to  be  counted  as  in  all  other  computations  of  time;  because? 
they  are  not  appointed  for  tlie  performance  of  any  act.  And  this  distinction  is  analo- 
gous to  the  modes  of  computation  under  the  common  rule  for  pleading  in  abatement.' 
Ilosmrr,  J.,  in  a  dissenting  opinion,  said  :  "  I  have  already  observed,  that  tiic  perform- 
ance of  the  contract  should  be  as  near  to  the  letter  of  it  as  it  may  bo  ;  and  tliat  it  will 
be  equally  near,  whether  the  day  of  payment  is  considered  as  being  Saturday  or  Mon- 
day. The  other  branch  of  my  |)roposition  is  this,  that  it  must  not  include  a  longer 
period  than  the  one  which  the  contract  expressly  assumes.     In  other  words,  the  partv 


CH.  XI.]  AT    WHAT    TIME    DKMANI)    SHOULD    BE    MADE.  4^>1 

business  on  such  a  day,  nor,  in  the  case  of  Sunday,  is  it  hiwful 
for  him  so  to  do.  But  if  the  last  day  of  grace  falls  upon  a  holi- 
day, the  note  or  bill  must  bo  presented,  in  the  absence  of  any 
statutory  provisions  to  the  contrary,  on  the  secular  day  next  pre- 
ceding the  holiday, (.s)  oven  though  the  note  be  entirely  deprived 


promising  must  perform  witliin  tlie  time  prefixed.  To  enlarge  the  time  of  a  contract 
is  jus  diccre,  non  dare.  If  the  contractor  lias  appointed  a  day  on  which  to  perform, 
when,  hy  law,  he  cannot,  he  did  it  with  his  eyes  open,  with  full  Icnowlcdge  that,  unless 
his  agreement  was  void  from  the  impossibility  of  ])orformance,  it  could  not  be  executed 
on  the  day  prefixed.  What,  then,  is  the  reasonal)le  consequence  ?  As  the  party  prom- 
ising knew  that  his  contract  could  not  literally  be  accom])lished,  and  as  he  knew,  like- 
wise, that  he  must  perform  within  the  limits  of  the  time  assumed,  he  must  have  ex- 
pected and  intended  to  have  fulfilled  it  on  Saturday.  This,  in  my  judgment,  is  the 
fair  legal  construction.  If  it  wanted  fortifying,  it  would  derive  it  from  the  well-known 
maxim.  —  a  rule  of  some  strictness  and  rigor,  and  the  last  to  be  resorted  to,  — that  the 
construction  is  to  be  most  strong  against  the  party  promising."  After  referring  to  the 
rule,  that,  when  the  last  day  of  grace  falls  upon  Sunday,  demand  must  be  made  on 
Saturday,  he  proceeds  :  "Between  a  negotiable  note  becoming  due  on  Sunday,  and  a 
note  not  negotiable  payable  at  the  same  time,  I  perceive  a  distinction,  but  no  essential 
difference.  The  construction,  in  iny  opinion,  should  be  the  same  in  both  instances. 
It  cannot  comport  with  public  convenience  that  a  different  rule  should  prevail  in  cases 
so  very  similar.  It  is  much  preferable  that  there  should  be  one  uniform  rule  on  the 
subject,  than  that  a  diversity  should  exist,  which  will  emharrass  mankind  in  their  inter- 
course with  each  other,  and  may  be  a  fruitful  source  of  error  and  litigation In 

fine,  in  my  judgment,  one  uniform  rule  of  construction  on  the  point  under  discussion 
is  desirable.  The  person  who  promises  to  do  an  act  must,  at  his  peril,  if  there  has  no 
impossibility  arisen  posterior  to  the  engagement,  perform  within  the  time  explicitly 
assumed.  If  the  contract  is  stipulated  to  be  performed  on  Sunday,  the  legal  construc- 
tion is,  that  it  shall  be  done  on  the  preceding  Saturday.  This  is  agreeable  to  the  usage 
of  merchants,  in  respect  of  bills  of  exchange  and  negotiable  notes,  —  a  usage  not  arbi- 
ti'ary  and  founded  on  no  reason,  but  bottomed  on  common  sense  and  common  law; 
and  in  this  opinion  I  am  more  deeply  confirmed,  since  no  case  has  been  adduced  to 
show  that  a  person  has  been  allowed  a  period  to  perform  in,  beyond  the  express  limita- 
tion of  his  contract."  See  also  Sands  v.  Lyon,  18  Conn.  18;  Staples  ?'.  Franklin  Bank, 
1  Met.  4-3,  47.  Shaw,  C.  J.  The  only  decision  to  the  contrary,  in  the  case  of  notes,  is 
Osborne  v.  Smith,  14  Conn.  366,  note,  infra,  p.  402,  note  u.  But  with  regard  to  other 
contracts,  it  will  be  seen  that  there  is  a  conflict  of  authority. 

(s)  In  Tassell  ?;.  Lewis,  1  Ld.  Raym.  74.3,  it  is  said:  "But  if  it  happens  that  the 
last  of  the  said  three  days  is  Sunday,  or  great  holiday,  as  Christmas  day,  &c.,  upon 
which  no  money  used  to  be  paid,  then  the  party  ought  to  demand  the  money  upon  the 
second  day  ;  and  if  it  is  not  paid,  he  ought  to  protest  the  bill  the  said  second  day, 
otherwise  it  will  be  at  his  own  peril,  for  the  drawer  will  not  be  chargeable."  Bussard 
r.  Levering,  6  Wheat.  102;  Barker  v.  Parker,  6  Pick.  80;  Jackson  v.  Richards,  2 
Caines,  343  ;  Lewis  v.  Burr,  2  Gaines's  Cas.  195  ;  Spencer,  J.,  Griffin  v.  GofF,  12  Johns 
423  ;  Ontario  Bank  v.  Petrie,  3  Wend.  456  ;  Cuylcr  v.  Stevens,  4  id.  566 ;  Ransom  v. 
Mack,  2  Hill,  587  ;  Sheldon  v.  Benham,  4  id.  129  ;  Sheppard  v.  Spates,  4  Md.  400; 
OfFut  V.  Stout,  4  J.  J.  Marsh.  332  ;  Fleming  v.  Fulton,  6  How.  Miss.  473  ;  Barlow  v. 
Planters'  Bank,  7  id.  129 ;  Homes  i'.  Smith,  20  Maine,  264,  where  a  demand  made  on 

Vol.  L— 2  A 


40fi  NOTES   AND    BILLS.  [CH.  XL 

of  grace  by  three  succeeding  holidays. (^)  This  question,  it  may  be 
remarked,  like  all  others  connected  with  the  subject  of  grace,  is 
dependent  upon  the  law  or  the  usage  of  the  place  where  the  note 
or  bill  is  to  be  presented.(M)  In  case  the  holidays  intervene,  they 
are  to  be  treated  as  any  other  day.(y)  Sunday  has  been  treated 
as  a  holiday  in  England  with  respect  to  the  days  of  grace  on  for- 
eign bills  from  the  time  of  Lord  Holt,(it?)  and  it  lias  since  been 
extended  equally  to  inland  bills  and  promissory  notes. (.r) 

Before  any  statutory  provisions  concerning  them,  the  fourth 
of  July, (2/)  and  Commencement-day  at  Harvard  University  in 
Massachusetts,(2:)  have  been  recognized  as  holidays  by  the  courts. 


Sunday  itself  was  held  a  day  too  late,  and  an  indorser  was  discharged.  See  Avery  v. 
Stewart,  2  Conn.  69,  supra,  p.  400,  note  r. 

(t)  In  Diibney  v.  Campbell,  9  Humph.  680,  the  last  day  was  Sunday.  Saturday 
■was  New-Year's  day,  and  the  demand  was  made  on  Friday.  Neither  counsel  nor  court 
made  any  objection  to  it.  The  case,  however,  which  was  decided  for  the  defendant, 
an  indorser,  turned  on  another  point. 

(ti)  Blodgett  V.  Durgin,  32  Vt.  361  ;  Ivilgore  v.  Bulkley,  14  Conn.  362,  which  was 
a  case  on  a  certificate  of  deposit  which  fell  due  by  its  terms  on  Sunday.  As  it  was 
payable  in  New  York,  it  was  held  to  be  governed  by  the  law  of  that  place,  as  to  the 
proper  day  of  presentment.  Evidence  was  offered  by  the  defendant  to  show  that 
grace  was  there  allowed,  and  by  the  plaintiff  that  it  was  not  allowed.  The  evidence 
had  been  objected  to.  On  the  question  whether  Saturday  was  a  proper  day  for  pre- 
sentment, the  plaintiff  introduced  evidence  of  usage,  and  also  a  report  of  the  case 
of  Osborne  v.  Smith,  14  Conn.  369,  note,  decided  in  the  Superior  Court  of  New 
York  city.  The  defendant  objected  to  all  this  evidence,  and  introduced  testimony  to 
prove  that  the  custom  was  to  make  the  demand  on  Monday,  and  also  a  report  of  the 
case  of  Salter  v.  Burt,  20  Wend.  205,  decided  in  the  Supreme  Court  of  New  York. 
The  jury  found  for  the  plaintiff.  Held,  that  the  evidence  and  decisions  were  properly 
admitted,  and  that  the  instruction  given  by  the  presiding  judge,  that  the  decision  of  the 
Supreme  Court  was  entitled  to  greater  weight  tiian  that  of  the  Superior  Court,  but 
that  neither  was  conclusive,  was  conxct. 

(v)  See  Avery  v.  Stewart,  2  Conn.  69,  supra,  p.  400,  note  ?•.  So  if  the  day  the  note 
is  due,  on  its  face,  is  Sunday.     Wooley  v.  Clements,  11  Ala.  220. 

{w)  In  Tassell  v.  Lewis,  1  Ld.  Kaym.  743,  "  Merchants,  in  evidence  at  a  trial  in 
Guildhall,  Trin.  7  Wm.  IIL  (1696),  Ix'fore  lloll,  C.  J.,  swore  the  custom  of  merchants 
to  be  such,  which  was  approved  by  Ilult,  C.  J." 

(x)  Kent,  C.  J.,  Jackson  v.  Richards,  2  Caincs,  343.  It  would  seem  always  to  have 
been  so  considered  in  the  United  States. 

((/)  Lewis  V.  Burr,  2  Caines's  Cas.  195  ;  Cuyler  v.  Stevens,  4  Wend.  566;  Ransom 
I'.  Mack,  2  Hill,  587  ;  Sheldon  v.  Benham,  4  id.  129. 

{z)  In  City  Bank  c.  Cutter,  3  Pick.  414,  it  was  held  that,  though  this  day  was  not  a 
legal  holiday,  yet  a  usage  of  any  bank,  in  respect  to  notes  falling  due  that  day,  to  make 
a  demand  and  to  send  notice  the  day  previous,  will  bind  an  indorser,  conusant  of  that 
usage,  of  a  note  discounted  for  him  at  the  bank  ;  and  whether  the  note  was  payable  at 
the  bank  or  not  is  immaterial.  In  this  case  the  note  was  payable  on  that  day,  and  a 
demand  made  the  day  previous.     Tlie  indorser  was  held. 


CH.  XI.]  AT   WHAT   TIME   DEMAND   SHOULD    BE   MADE.  403 

Now,  in  most  of  the  States,  there  are  statutes  specifically  de- 
scribing holidays,  and  prescribing  the  practice  with  regard  to 
them ;  (a)  but  independently  of  these,  usage  would  determine 
whether  any  day  was  to  be  so  regarded,  and  also  the  regulations 
concerning  \t.{b) 

(a)  In  Alabama,  Sunday,  Jan.  1st,  and  July  4th  are  established  holidays.  Code, 
1852,  p.  317.  In  Arkansas,  Sunday,  July  4th,  Dec.  2.'5th.  In  California,  Sunday, 
Jan.  1st,  July  4th,  Dec.  2.5th.  Wood,  Di^.,  1858,  p.  74.  In  Connecticut,  Sunday,  July 
4th,  Dec.  25th,  Thanksf^iving  and  Fast  days.     R.  S.  1854,  p.  694. 

In  Geonjia,  Sunday,  Jan.  1st,  July  4th,  Dec.  25th,  Fast  and  Thanksgiving  days. 
Cobb,  New  Dig.,  1851,  p.  522.  In  Illinois,  Sunday,  Fourth  of  July,  Christmas,  New 
Year's  day.     III.  Stats.,  ed.  1858,  p.  119. 

In  Iowa,  Sunday,  Jan.  1st,  July  4th,  Dec.  25th,  Fast  and  Thanksgiving  days.  Re- 
vision of  I860,  p.  320. 

In  Louisiana,  Sunday,  Jan.  1st,  Jan.  8th,  Feb.  22d,  July  4th,  Dec.  25th,  Good  Fri- 
day.    These  are  called  "  days  of  public  rest."     R.  S.  1856,  p.  44. 

In  Maine,  Sunday,  Feb.  22d,  July  4th,  Dec.  25th,  Fast  and  Thanksgiving  days. 
R.  S.  1857,  p.  273. 

In  Massachusetts,  Sunday,  Feb.  22d,  July  4th,  Dec.  25th,  Fast  and  Thanksgiving 
days.     Gen.  Stats.  1860,  p.  294 

In  Minnesota,  Sunday,  Jan.  1st,  July  4th,  Dec.  25th,  Fast  and  Thanksgiving  days. 
Stat.  1858,  p.  376. 

In  Missouri,  Sunday,  Jan.  1st,  July  4th,  Dec.  25th,  Thanksgiving.  R.  S.  1855,  p. 
298.  In  Neio  Hampshire,  Sunday,  July  4th,  Fast  and  Thanksgiving  days.  Laws  of 
1857,  p.  187.  In  New  Jersey,  Sunday,  Jan.  1st,  July  4th,  Dec.  25th.  Nixon,  Dig. 
1855,  p.  669.  In  New  York,  Sunday,  Jan.  1st,  July  4th,  Dec.  25th,  Fast  and  Thanks- 
giving days.     R.  S.  1852,  p.  181. 

In  Ohio,  Sunday,  Jan.  1st,  July  4th,  Dec.  25th,  Thanksgiving.     Laws,  1857,  p.  76. 

In  Rhode  Island,  Sunday,  Jan.  1st,  July  4th,  Dec.  25th,  Thanksgiving  and  Fast 
days.     R.  S.  1857. 

In  Tennessee,  Sunday,  Jan.  1st,  July  4th,  Dec.  25th,  Fast  and  Thanksgiving  days. 
Code,  1858,  p.  400. 

In  Vermont,  Sunday,  Jan.  1st,  July  4th,  Dec.  25th,  Fast  and  Thanksgiving  days. 
Comp.  Stat.  1850,  p.  443. 

In  Wisconsin,  Sunday,  Jan.  1st,  July  4th,  Dec.  25th,  Thanksgiving.  Gen.  Laws, 
1860,  p.  224. 

In  the  following  States  the  demand  must  be  made  on  the  business  day  next  preced- 
ing any  holiday,  — Alabama,  Arkansas,  California,  Georgia,  Louisiana,  Massachusetts, 
Minnesota,  Missouri,  New  Hampshire,  New  Jersey,  New  York,  Ohio,  Rhode  Island, 
Vermont.  In  the  following  States,  on  the  first  business  day  next  succeeding,  —  Con- 
necticut, Wisconsin.  In  Maine,  where  a  holiday  falls  on  the  last  day  of  grace,  de- 
mand must  be  made  the  business  day  next  before  the  holiday.  If  on  the  last,  and 
also  on  the  second,  it  should  be  made  the  next  succeeding  business  day.  In  Ver- 
mont, the  regulations  aifect  contracts  on  which  no  gi-ace  is  allowed  equally  with 
those  which  are  entftled  to  that  indulgence. 

(6)  City  Bank  v.  Cutter,  3  Pick.  414,  supra,  note  «.■»  In  Adams  v.  Otterback,  15 
How.  539,  a  bank  which  had  been  accustomed  to  make  presentment  of  paper  dis- 
counted on  the  day  after  the  third  day  of  grace,  attempted  to  set  up  a  usage  to  make 
presentment  on  Monday,  when  Sundtiy  was  the  fourth  day ;  but  as  the  only  evidence 


404  KOTES   AND    BILLS.  [CH.  XL 

It  is  settled  that,  if  the  maker  is  entitled  to  grace,  the  iiidorser 
has  the  same  privilege  ;  (c)  and  also  that,  if  the  indorser  has  the 
right  to  consider  the  days  of  grace  as  a  part  of  the  contract,  the 
maker  has  also  ;  (d)  though  an  opinion  seems  formerly  to  have 
been  entertained,  that  grace  only  applied  as  regards  an  indorser, 
and  that  the  maker  was  liable  as  soon  as  the  note  fell  due,  ac- 
cording to  its  terms ;  (e)  but  there  is  no  modern  authority  to  this 
effect,  and  no  usage  that  we  are  aware  of. 

As  to  the  kinds  of  instruments  entitled  to  grace,  the  rule,  as 
supported  by  the  weight  of  authority,  is,  that  all  negotiable  notes 
and  bills,  except  those  payable  on  demand  and  those  in  which  an 
intention  to  exclude  grace  is  apparent  on  the  face,  are  entitled  to 
this  indulgence. 

There  may  still  be  some  doubt  with  reference  to  bills  payable 
at  sight,  for  the  law  on  this  point  can  hardly  be  said  to  be  in  a  sat- 
isfactory state.  In  England,  there  has  been  as  yet  no  authorita- 
tive decision,  though  the  inclination  of  the  authorities  appears  to 
be  in  favor  of  the  allowance. (/)     In  this  country,  the  weight  of 

of  this  usage  consisted  of  four  instances  within  two  years,  it  was  held  not  to  be 
sufficiently  established.  In  Dabney  v.  Campbell,  9  Humph.  680,  evidence  was  intro 
duced  of  a  usage  of  the  banks  in  Memphis  and  Nashville  to  regard  New- Year's  day 
as  a  holiday.  The  judge,  at  Nisi  Prius,  charged  the  jury  tliat  a  demand  the  day  prc« 
vious  was  not  sufficient  to  charge  an  indorser,  unless  he  had  express  knowledge  of  tlia 
usage,  or  previous  dealings  with  the  bank  from  wiiich  such  knowledge  could  be  in- 
ferred. Held  correct,  and  a  verdict  for  the  defendant  was  sustained.  The  plaintiffs 
contended  that  the  defendant,  having  dealt  with  the  bank,  was  bound  by  tlie  usage, 
wliether  he  had  knowledge  or  not.  Green,  J.  said :  "  The  custom  proved  in  tiiis 
case  is  not  one  by  whicli  all  the  notes  negotiated  in  this  bank  are  regulated,  but  it  is  a 
custom  applicable  to  only  one  day  in  the  year.  In  the  nature  of  tilings  tiic  cases  on 
which  this  usage  has  been  acted  on  must  be  comparatively  few  ;  actual  knowledge  of 
it  cannot,  therefore,  be  reasonably  inferred,  even  in  relation  to  habitual  dealers  in  the 
bank.  But  that  a  man  who  is  not  proved  to  have  dealt  at  all  with  the  bank  heretofore 
shall  1)0  held  bound  by  such  usage,  is  to  subvert  altogether  the  original  principle  of  the 
cases,  and  to  substitute  the  usage  of  a  bank  as  the  law  of  the  contract,  in  opjiositiou 
to,  and  disregard  of,  the  general  law." 

(c)  Pickard  v.  Valentine,  13  Maine,  140  ;  Central  Bank  v.  Allen,  16  id.  41. 

(d)  Love  V.  Nelson,  Mart.  &  Y.  237  ;  Hogan  v.  Cuyler,  8  Cowcn,  203. 

(e)  Jarvis  v.  McMain,  3  Hawks,  10  (1824).  In  both  cases  cited  supra,  noted,  the 
judges  at  Nisi  Prius  instructed  the  juries  to  tlic  same  effect,  l)ut  the  courts  above  de- 
cided that  the  instructions  were  erroneous. 

(/)  In  Dehers  v.  Harriot,  1  Show.  163,  164,  note  (1692),  all  the  merchants  agreed 
"  that,  if  there  were  an  acceptance,  the  protest  must  be  at  the  day  of  payment ;  if  at 
sight,  tiien  at  the  tliird  day  of  grace."  In  Coleman  v.  Saycr,  1  Barnard.  303  (1728), 
cue  of  the  questions  was  "whether  tiic  tiirce  days  of  grace  arc  allcwable  by  tiie  custota 
of  London,  as  well  where  a  I>ill  is  payable  at  certain  days  after  siglit,  as  well  as  where 


CII.  XI.]  AT   WHAT    TIME   DEMAND   SHOULD   BE   MADE.  405 

authority  is  on  the  same  side,  but  the  decisions  arc  conflictiiig.(^'') 
Undoubtedly  usage  would  determine  the  question  in  any  particu- 


it  is  payable  upon  sight.  The  Chief  Justice  said  the  days  of  grace  were  allowable  in  one 
case  as  well  as  the  other."  In  Jansou  v.  Thomas,  3  Doug.  421  (1784),  it  was  olijeetc"' 
by  tlic  defendant,  th;it  the  bill,  which  was  at  sight,  was  unstamped.  It  was  answered, 
tliat  the  stamp  act  excluded  bills  on  demand,  and  that  bills  at  siglit  should  come  within 
the  operation  of  the  act.  Held,  for  the  defendant,  that  the  I>ills  should  have  been  stamped. 
Lord  Mantijield  said  :  "  I  believe  there  is  great  doubt  as  to  the  usage  about  the  three 
days'  grace."  Bulkr,  J.  said :  "  In  a  case  before  Willes,  C.  J.  (1743),  a  special  jury  cer- 
tified that,  on  bills  at  sight,  three  days  were  allowed.  That  was  an  action  on  an  in- 
land bill.  I  know  that  now  they  differ  about  it  in  the  city,  but  in  general  it  is  taken." 
In  Dixon  v.  Nuttall,  1  Cromp.  M.  &  R.  307  (1834),  the  point  arose,  but  the  court 
thought  it  unnecessary  to  express  any  opinion  upon  it."  In  Webb  v.  Fairmaner.  3 
M.  &  W.  473,474,  Bolland,  B.,  interrupting  counsel,  said:  "  In  the  case  of  a  bill  pnya- 
ble  at  sight,  it  has  been  decided  over  and  over  again,  tiiat  the  holder  cannot  su(^  upon  it 
until  after  the  expiration  of  the  third  day  after  sight." 

(g)  The  cases  allowing  grace  are  Hart  v.  Smith,  15  Ala.  807,  where  Dargaii,  J. 
said  :  "  I  am  free  to  confess  that  my  opinion,  untrammelled  by  authority,  would  incline 
me  to  hold  that  a  bill  of  exchange,  payable  at  sight,  is  not  entitled  to  days  of  grace." 
But  after  citing  the  English  authorities,  and  the  opinions  of  text-writers,  adds:  "  Undei 
the  influence  of  tiiese  authorities  I  feel  constrained  to  hold  that  a  bill  payable  at  sight  is 
entitled  to  days  of  grace."  Lucas  v.  Ladew,  28  Misso.  342.  In  Nimick  v.  Martin, 
1  Monthly  Law  Mag.  15, 17  West.  Law  J.  380,  Straichridfje,  J.  said  :  "  On  the  abstract 
question,  I  have  not  now,  nor  have  I  for  thirty  years,  had  the  least  doubt."  He  then  cites 
the  opinions  of  Kent,  Bayley,  and  Chitty  with  approbation,  and  adds :  "If  we  were  at 
liberty  to  examine  into  the  reason  of  the  thing,  it  would  seem  much  stronger  in  favor 
of  a  sight  draft  than  of  one  at  sixty  days  or  six  months,  where  all  reason  fails."  Contra, 
Trask  v.  Martin,  1  E.  D.  Smith,  505,  Ingraham,  J.  dissenting.  Woodruff,  J.,  delivering 
the  opinion  of  the  court,  said:  "However  such  allowance  originated,  whether  in  the 
indulgence  of  the  holder  or  otherwise,  it  became  at  last  the  right  of  the  drawee.  But  it 
is  in  contradiction  of  the  terms  of  the  bill,  and  a  departure  from  its  plain  import.  So 
far  as  the  usage  allowing  such  departure  has  ripened  into  law,  so  far  as  this  departure 
has  been  recognized  and  approved,  so  far,  and  so  far  only,  should  it  prevail  against  the 
otherwise  obvious  meaning  of  the  language.  The  language  of  a  bill  of  exchange  payable 
at  sight  requires  that  it  should  be  paid  when  exhil)itcd  to  the  drawee.  Is  it  payable  ac- 
cording to  its  purport,  or  does  that  usage,  which  has  now  become  laiu,  embrace  such  a 
bill,  and  alter  its  otherwise  legal  meaning  1  Prima  facie,  as  alread}^  remarked,  the 
language  of  the  bill  should  govern.  This  rule  of  construction  is  applicable  as  much 
to  commercial  contracts  as  to  any  others.  If  the  language  is  to  be  controlled  and  modi- 
fied by  usage,  it  may  be,  1st,  by  a  usage  so  ancient  and  so  universal  as  to  form  a  part  of 
the  general  law  applicable  to  the  subject,  or,  2d,  as  usage  of  a  particular  place,  uniform 
within  its  limits,  creating  an  exception  to  the  general  rule,  and  to  be  ascertained  by  in- 
quiry and  proof.  ....  Nothing,  therefore,  can  be  inferred  respecting  bills  payable  at  sight 
from  the  conceded  fact  that  bills  paj-able  after  sight  or  after  date,  or  at  a  future  day,  have 
days  of  grace,  so  long  as  it  is  no  less  clearly  settled  that  bills  payable  on  demand,  or 
without  any  day  of  payment  named  therein,  have  no  days  of  grace.  On  the  contrary, 
if  analogy  furnished  any  guide,  we  should  say  that  the  terms  'at  sight'  no  less  de- 
cidedly indicated  on  the  verij  instant,  than  'on  demand,' and  there  would  seem  to  be  no 
cnore  reason  for  allowing  days  of  grace  in  the  one  case  than  in  the  other."     The  judge 


106  NOTES   AXD   BILLS.  [CH.  XI. 

lar  case,  and  it  has  been  so  held. (A)  The  ophiioii  of  some  of 
the  older  writers  was  for  the  exclusion  of  grace 5(1)  but  this  is  not 
so  with  the  majority  of  modern  authors  who  have  treated  of  the 
subject. (j)     In  many  of  the  States  statutes  have  been  passed, 


goes  on  then  to  state  that  the  ease  had  been  argued  entirely  apart  from  any  local  usage 
in  New  York,  and  that  the  general  usage  with  reference  to  bills  at  sight  was  so  un- 
certain, and  its  recognition  so  doubtful,  that  it  could  not  be  taken  to  contradict  the  im- 
port of  the  language  of  the  bill  itself.  The  cases  cited  supra,  p.  404,  note/,  were  criti- 
cised, and  their  authority  denied.  The  opinions  of  the  text-writers  were  commented  upon 
at  length,  and  the  authority  of  Beawes  and  Kyd  especially  relied  upon.  He  then  adds : 
"  My  conclusion  is,  that  the  language  of  the  instrument,  in  tlie  absence  of  any  settled 
legal  principle  modifying  its  import,  must  govern  the  court  in  determining  its  meaning 
and  effect.  And  that  there  is  no  known  recognized  usage  which  the  court,  as  a  matter 
of  law,  can  say  has  given  to  such  bills  tlie  allowance  of  days  of  grace."  So  far  as  the 
reason  of  the  thing  is  concerned,  we  should  be  inclined  to  adopt  the  opinion  of  Straw 
bridge,  J.,  cited  above.  It  has  been  stated  that  grace  probably  had  its  origin  in  thy 
fact  that  the  goldsmiths,  who  were  the  early  bankers,  used  to  make  their  payments 
in  bars  of  gold  and  silver,  and  often  would  require  some  time  in  order  to  have  a  sufll- 
cient  weight  at  the  place  of  payment  to  meet  the  demand.  This  of  course  would  apply 
with  all  the  more  force  to  those  bills  the  time  of  whose  presentment  was  uncertain,  as 
is  the  case  with  bills  at  sight;  so  that  whenever  a  goldsmith  stipulated  that  a  bill 
should  first  be  shown  to  him,  he  also  stipulated  that  a  reasonable  time  should  be  al- 
lowed him  within  which  to  prepare  to  meet  it.  With  respect  to  analogy,  it  is  clear 
that,  granting  there  is  a  difference  between  a  sight  bill  and  one  on  demand,  the  former 
bears  a  closer  resemblance  to  a  bill  at  one  day's  sight,  which  is  without  any  doubt 
entitled  to  grace,  than  the  latter,  which  is  not.  The  distinction  between  these  two 
kinds  of  instruments  has  always  been  clearly  defined,  and  one  objection  to  the  decision 
in  Trask  v.  Martin  is,  that  it  tends  to  obliterate  the  line  which  has  been  drawn  between 
them.  With  regard  to  the  criticisms  on  the  English  authorities,  although  it  will  be 
conceded  that  none  of  them  is  authoritative,  yet  they  are  all  evidence  to  show  what  the 
custom  of  merchants  formerly  was ;  and  the  ojiinion  of  "  all  the  merchants  "  in  tho 
case  in  Shower,  of  the  "  special  jury"  in  the  case  tried  before  Miller,  C.  J.,  is  certainly 
entitled  to  great  weight  on  this  point.  As  regards  the  contradiction  of  the  language 
of  the  bill,  it  would  seem  that  this  argument  migin  liave  been  used  with  greater  force 
at  the  early  period  in  the  law  of  notes  and  bills  than  at  present,  and  that,  instead  of 
being  necessary  to  show  by  usage  that  a  note  or  bill  is  entitled  to  grace,  it  would  seem 
to  be  more  in  accordance  witii  the  spirit  of  modern  law,  as  stated  in  the  cases  cited 
supra,  p.  .396,  notes  d  and  f,  that  the  burden  of  proof  is  upon  the  party  seeking  to  de- 
prive any  kind  of  negotiable  instrument  of  grace,  to  prove  either  a  usage  or  law  to  that 
effect.  If  tliis  were  not  so,  it  is  conceived  tliat  grace  could  never  bo  allowed,  except 
on  paper  which  is  already  entitled  to  it. 

(/i)  Slrawbridye,  J.,  Nimick  v.  Martin,  1  U.  S.  Monthly  Law  Mag.  1.5,  7  Wesn  Law 
Journ.  .380,  in  the  District  Court  of  New  Orleans.  Nov.  1849. 

(/)  Heawes,  ])1.  2.52,  256  ;  Glen,  119,  citing  Lav.  torn.  1,  liv.  3,  c.  5  ;  Scarlett,  C.  16, 
R.  8  ;  Johnson,  9;  Jousse  do  I'Ordonnnnce  167.3,  78;  Kyd,  10;  Pothicr,  172. 

( ;■)  Haylcy,  233  (Am.  ed.  18.36)  ;  Bylcs,  162,  says  :  "  The  weight  of  authority  has 
been  considered  to  incline  in  favor  of  such  allowance."  Chitty,  258.  261,  lOih  Loud,  cd.; 
Edwards,  523;  Forbes,  142;  3  Kent,  Com.  102;  Sclw.  N.  P,  Bills  of  Ivnch  6  ;  Hm'lh, 


CH.  XI.]  AT    WHAT   TIME   DEMAND    SHOULD    BE   MADE.  407 

owing  to  the  uncertainty  of  the  law;  some  of  them  admit- 
ting,(/u)  others  excluding  grace. (/) 

Grace  has  never  been  extended  to  notes  and  bills  on  de- 
mand,(w)  but  there  are  statutory  regulations  concerning  this  also 
in  several  States. («) 

If  a  note  be  payable  by  instalments,  the  days  of  grace  are 
allowed  on  each  instalment,  (o)  A  note  payable  the  first  day  of 
May,  "  fixed,"  has  been  held  not  entitled  to  grace,  the  signifi- 
cation of  the  word  "  fixed "  being  construed  to  be  "  witiiout 
grace. '■(/>)  This  meaning  has  not  been  applied  to  the  words 
"without  defalcation. "(r/) 

A  bank-check  ordinarily  is  not  entitled  to  grace  ;  but  whether 
it  is  entitled  to  the  allowance  or  not  when  post-dated,  or  when  its 
terms  are  the  same  with  those  of  a  bill  of  exchange,  is  yet  unset- 
tled, the  authorities  being  in  a  state  of  conflict,  (r)  Grace  has 
been  allowed  on  bank  post-notes,(.9)  and  there  seems  to  be  no  rea- 


Merc.  Law,  249,  5th  Lond.  ed. ;  Story  on  Bills,  §  342  ;  Vincr,  Abr.,  Bills  of  Exch.  B. 
Thompson  expresses  no  opinion.     So  1  Bell,  Com.  416. 

{k)  Alabama,  Arkansas,  Indiana,  Louisiana,  Maine,  Massachusetts,  Michigan,  Min- 
nesota, New  Hampshire,  North  Carolina,  Ohio,  Oregon,  South  Carolina,  Texas,  Wis- 
consin     See  supra,  p.  393,  notes  b,  c. 

(/)  California,  Minturn  v.  Fisher,  4  Calif.  35  ;  Delaware;  Georgia,  Freeman  v.  Ross, 
15  Ga.  252  ;  Missouri,  Lucas  i;.  Ladew,  28Misso.  342  ;  New  York  ;  Pennsylvania,  Laws 
of  1857,  p.  630;  Rhode  Island,  R.  S.  1857,  p.  278;  Tennessee,  Code,  1858,  p.  400, 
Vermont.     See  supra,  p.  393,  notes  b,  c. 

(m)  Gammer  v.  Harrison,  2  McCord,  246  ;  Smith  v.  Bythewood,  Rice,  245  ;  Luckey 
I'.  Pepper,  Morris,  490.  See  Freeman  v.  Ross,  15  Ga.  252  ;  Coiven,  J.,  Harkcr  v.  An. 
derson,  21  Wend.  372  ;  Woodruffs.  Merchants'  Bank,  Nelson,  C.  J.,  25  id.  673  ;  Parke, 
B.,  Oridge  v.  Sherborne,  11  M.  &  W.  374. 

(n)  In  the  following  States  grace  is  expressly  denied  by  statute,  to  notes  and  bills  on 
demand  :  Maine,  Massachusetts,  Michigan,  Minnesota,  New  Hampshire,  North  Caro- 
lina, Vermont,  Wisconsin.     See  supra,  p.  393,  notes  b,  c. 

(o)   Oridge  i:  Sherborne,  11  M.  &  W.  374.     Sec  Carlon  v.  Kenealy,  12  id.  139. 

(p)  Durnford  v.  Patterson,  7  Mart.  La.  460,  where  the  opinion  of  Febrcro  is  cited 
to  show  that  "  fixed  "  means  "  without  grace,"  and  that  of  Jousse,  that  it  is  super- 
fluous. 

(g)  McDonald  v.  Lee,  12  La.  435. 

(r)  Infra,  chapter  on  Checks. 

(s)  Sturdy  ».  Henderson,  4  B.  &  Aid.  592  ;  Staples  v.  Franklin  Bank,  1  Met.  43; 
Perkins  v.  Franklin  Bank,  21  Pick.  483.  These  last  two  cases  were  decisions  under  a 
statute  which  provides  that  on  all  promissory  negotiable  notes  payable  at  a  future 
day  certaui,  in  which  there  is  not  an  express  stipulation  to  the  contrary,  grace 
shall  be  allowed ;  but  as  this  appears  to  be  nothing  more  than  an  enactment  of  or 
recognition  of  the  common  law  on  the  subject,  the  authorities  would  apply  equally 
where  there  are  no  statutory  provisions. 


408  NOTES   AND    BILLS.  [CH.  XL 

son  \v  hy  the  same  should  not  be  applicable  to  certificates  of  de- 
posit payable  on  time ;  but  the  law  with  reference  to  this  last 
kind  of  instrument  is  yet  unsettled. (/!)  Whether  notes  payable 
to  a  particular  person  without  the  words  "  or  order,"  are  entitled 
to  grace  or  not,  is  likewise  unsettled. («/)  A  similar  imcertainty 
exists  as  to  sealed  notes. (t;)  The  maker  may  stipuUite  that  a 
note  or  bill  shall  be  paid  without  grace.  Such  a  stipulation  may 
be  in  any  form  of  words  which  convey  the  idea  that  the  instru- 
ment is  to  be  payable  without  grace,  as  by  using  the  words  in  the 
body  or  on  the  margin  "  without  grace,"  "  no  grace,"  "free  of 
grace,"  or  any  other  circumlocution  which  would  indicate  to  the 
holder  that  it  is  payable  on  the  day  fixed. (?^) 

So  in  the  case  of  an  acceptance,  wliere  it  is  apparent  from  the 
terms  of  the  writing  that  the  acceptor  in  designating  the  day  of 
payment  intended  to  include  the  days  of  grace,  the  day  men- 
tioned is  the  peremptory  time  for  presentment,  without  any  ad- 
ditional allowance.  Thus,  where  a  bill  at  sixty  days'  sight  is 
accepted  Sei)tember  14,  payable  November  16,  the  demand  must 
be  made  on  this  last  date  in  order  to  charge  a  drawer  or  in- 
dorser  ;  if  made  three  days  later,  he  would  be  discharged. (.t) 
The  words,  however,  to  have  the  effect  of  cutting  off  the  days  of 
grace,  should  fairly  express  that  intent  without  ambiguity. (y) 

With  regard  to  the  method  of  computing  the   time,  as  has 


(t)  Sec  Kilgorc  v.  Bulkley.  14  Conn.  362,  supra,  p.  402,  note  u. 

(u)  Grace  is  allowed  in  Eni^land,  the  note  being  considered  a  negotiable  one  within 
the  statute  of  Anne  Smith  v.  Kendal,  1  Esp.  231,  nom.  Smith  v.  Kendall,  G  T.  Ji. 
123.  Such  would  probably  be  the  rule  in  New  York.  Downing  v.  Backcnstoes,  3 
Caincs,  137  ;  Goshen  &  Minisink  Turnp.  Road  v.  Hurtin,  9  Johns.  217  ;  Dutchess 
Cotton  Manuf.  v.  Davis,  14  Johns.  238.  But  in  Connecticut  such  a  note,  not  being 
considered  negotiable  within  the  statute  of  that  State,  is  not  entitled  to  grace.  Avery 
V.  Stewart,  2  Conn.  69  ;  Backus  i'.  Danforth,  10  Conn.  297. 

(y)  In  Love  v.  Nelson,  Martin  &  Y.  237,  it  was  held  that  a  scaled  note  was  entitled  t( 
grace.  But  the  contrary  was  held  in  Jarvis  v.  McMain,  3  Hawks,  10,  and  Fields  v. 
Mallett,  3  Hawks,  465.  In  both  North  Carolina  and  Tennessee,  where  these  casea 
were  decided,  scaled  notes  are  put  on  tiie  same  footing  as  others  by  statute. 

{ic)  Sliiiiv,  C.  J.,  Perkins  v.  Franklin  Bank,  21  Pick.  483. 

(jr)  Kcnncr  v.  Creditors,  19  Mart.  La.  ."itO,  20  id.  36,  1  La.  120.  And  if  there  is  no 
date  to  the  acceptance  it  may  be  shown  by  parol.     Ibid. 

(y)   Sec  .sH/>r«,  p.  407,  notes  p,  (j.     In  Perkins  v.  Franklin  Bank,  21    Pick.  4S3,  the 
note,  dated  December  7th,  183G,  was  payable  in  seven  months,  with  interest  "  until  due 
and  no  innrcst  after."     On  the  margin  were  written  the  words,  "  Due  July  7th,  lb37." 
It  was  contended  that  this  amounted  to  a  .stii>ulation  that  tiiere  should  be  no  graco 
but  the  court  iield  otherwise. 


CH.  XI.]  AT   WHAT   TIME   DEMAND    SHOULD    BE   MADE.  401^ 

already  been  remarked. (c)  the  date  is  always  excluded.  Thus, 
in  case  of  a  note  dated  Jaiuiary  1st,  payable  in  one  month,  ex 
eluding  the  date,  and  including  tiie  last  day  of  the  month,  the 
note  would  be  demandablc,  without  grace,  on  February  1st,  and 
witli  grace,  counting  tliis  date  as  the  first  day,  demand  sliould 
be  made  on  February  4th. 

Tlie  same  method  is  used  in  computing  the  time  when  the 
note  is  payable  at  a  certain  number  of  days  after  siglit  or  date. 
Thus,  in  case  of  a  note  dated  June  1st,  payable  at  ten  days 
after  date,  excluding  tlie  date,  tlie  note  would  be  payable  June 
lltli.  Adding  the  tlu'ce  days  of  grace,  the  note  would  be  paya- 
ble June  14tli,  and  payment  should  be  demanded  on  that  day. 

Where  a  note  is  payable  at  a  fixed  date,  as  October  1st,  the 
days  of  grace  are  simply  added,  and  consequently  the  demand  in 
such  case  must  be  made  on  October  4th.  As  we  have  already 
secn,(ri)  the  word  "  month"  in  tlie  law  of  notes  and  bills  always 
means  a  calendar  month,  and  no  allowance  is  to  be  made  for 
their  different  lengths.  But  where  a  note  is  made  on  the  last 
day  of  one  month  which  has  a  corresponding  day  in  the  month 
when  the  note  is  due,  the  day  after  this  corresponding  day  is  to 
be  considered  as  the  first  day  of  grace.  Thus,  where  a  note  is 
dated  September  30th,  payable  in  one  month  from  date,  it  must 
be  demanded  November  2d. (6)  Where  a  note  is  dated  on  the 
last  day  of  a  month  which  has  no  corresponding  day  in  the 
month  when  it  is  due,  the  doctrine  of  cij-pres  (or  ''  as  near  as 
may  be  ")  applies,  by  which  the  last  day  in  the  latter  month  is 
taken,  as  the  nearest  approximation,  for  the  day  before  the  first 
day  of  grace.  Thus,  a  note  for  one  month,  dated  January  28th, 
29th,  30th,  or  31st,  m\ist  in  ordinary  years  be  demanded  on 
Marcli  3d  ;  and  in  leap  years,  if  it  is  dated  January  28th,  it 
must  be  demanded  on  March  2d,  because  in  such  case  there  is 
a  day  in  February  corresponding  to  the  day  of  the  month  on 
which  the  note  was  made.(c)  If  a  note  has  an  impossible  date, 
as  September  31st,  where  the  time  of  delivery  is  not  shown,  the 
note  is  considered  as  dated  on  the  last  day  of  the  month,  which 

(z)  Supra,  p.  385,  note  v. 
(a)  Snjmi,  p.  384,  note  s. 
(i)   See  Wagner  v.  Kenner,  2  Rob.  La.  120. 

(c)  See  Wagner  v.  Kenner,  2  Rob.  La.  120;  where  6  Dalloz,  Jur.  du   Roy.,  tit 
EffeU  Je  Coinm.,  ^  4,  2,  is  cited  and  approved ;  Wood  v.  Mullen,  3  Rob.  La.  395. 
VOL.  I.  35 


410  NOTES   AND    BILLS.  [CH.  XL 

ill  the  case  supposed  would  be  September  30th  ;  and,  if  payable 
at  six  mouths  from  date,  has  been  held  demaudable  on  April 
2d.{d)  The  precise  day  upon  which  a  note  or  bill  falls  due  and 
is  payable  need  not  be  averred  in  the  declaration.  It  is  suffi- 
cient to  state  a  presentment  at  the  time  of  maturity  according 
to  the  tenor  and  effect  of  the  instrument. (e)  But  if,  on  com- 
parison of  its  terms  and  the  time  as  stated  under  a  videlicet,  the 
latter  happens  to  be  erroneous,  it  may  be  rejected  as  surplusage, 
and  the  declaration  will  still  be  good.(/) 

Where  by  special  custom  a  demand  may  be  made  on  any  other 
day  than  the  third  day  of  grace,  such  custom  should  be  averred 
and  proved. (o") 

A  question  has  arisen,  whether  the  maker  of  a  note  is  liable  to 
be  sued  before  the  expiration  of  the  last  day  of  grace,  and  the  de- 
cisions are  conflicting.  In  some  States  it  has  been  held  that  a  suit 
brought  on  the  third  day  was  premature,  the  courts  there  adopt- 
ing the  general  rule  with  reference  to  other  contracts,  that,  where 
a  day  is  appointed  for  the  payment  of  money,  the  payor  has  the 
whole  of  the  day  down  to  the  last  moment  in  which  to  tender 
the  money. (i)      But  many  courts  have  made  a  distinction  in 


(d)  Wagner  v.  Kenncr,  2  Rob.  La.  120,  where  a  demand,  on  April  3d,  was  lield  too 
late,  and  the  indorser  was  discharged. 

(c)  Bjnner  v.  Russell,  7  J  B.  Moore,  266. 

{/)  Bynner  v.  Russell,  7  J.  B.  Moore,  266,  wiierc  the  declaration  averred  a  pre- 
sentment of  a  hill  when  it  "  became  due  and  payable  according  to  tlie  tenor  and  effect 
thereof,  to  wit,  on  March  31st,  1822."  A  special  demurrer,  assigning  for  cause  that 
March  31st  was  Sunday,  was  overruled,  and  judgment  entered  for  the  plaintiff.  So, 
"  to  wit,  on  Juno  2d,  1848,"  when  the  note  was  payable  May  ."ith.  Frank  j;.  Townsend, 
9  Humph.  724.  In  this  last  case  the  defendant  pleaded  iion  assitmpsit.  In  Wells  v. 
Woodley,  .5  How.  Miss.  484,  the  averment  was,  "to  wit,  on  Feb.  28th,"  when  tho 
note  was  payable  Jan.  29th.     Held  sufficient,  after  judgment  by  default. 

((f)  Jackson  v.  Henderson,  3  Leigh,  196. 

(0  Lord  Kenijon,  C.  J.,  Leftley  r.  Mills,  4  T.  R.  170;  Wiggle  y.  Thomason,  II 
Smedcs  &  M.  4.')2 ;  Walter  v.  Kirk,  14  III.  5.").  In  Randolph  i'.  Cook,  2  Port.  Ala. 
286,  the  point  decided  was,  that  the  defendant  might  take  advantage  of  the  fact  that 
suit  was  brought  on  a  note  before  it  was  due,  by  writ  of  error,  after  appearance  and 
judgment  by  nil  elicit.  The  counsel  for  the  plaintiff  did  not  object  that  the  suit  was 
prematurely  brougiit,  but  only  that  the  objection  was  taken  too  late.  The  court  said 
that  it  was  unnecessary  to  examine  the  question  whether  the  suit  was  premature  or  not. 
But  in  a  previous  case,  Crenshaw  v.  M'Kiernan,  Minor,  29.'>,  Crenshaw,  J.  said  :  "  I 
take  it  to  be  a  correct  doctrine,  that,  if  iiayment  is  refused  when  a  note  or  bill  is  pre- 
sented on  the  day  of  payment,  the  holder  is  not  bound  to  wait  until  the  last  moment  of 
that  day,  but  may  fortliwiih  give  notice,  and  take  any  requisite  step  to  make  the  dinwer 
and  indorser  liable."     In  Wiggle  v.  Thomason,  11  Smedcs  &  M.  4.')2,  i*.  was  held  t^at 


CH.  XI.]  AT    WHAT    TLME   DEMAND    SHOULD   BE   JIADE.  411 

reference  to  negotiable  notes  and  bills, (j)  resting  upon  two  rea- 
sons. One  is,  that  a  protest,  which  can  clearly  be  made  on  the 
third  day,  presupposes  a  default  in  payment,  and  if  there  has 
been  such  default  in  the  maker,  the  right  of  action  must  be  con- 
sidered as  having  accrued  at  that  time,(/i;)  Another  reason  given 
is,  that  grace  was  originally  a  matter  of  indulgence,  and  might 
be  shortened,  while  in  ordinary  contracts  it  has  always  been  the 
right  of  the  payee  to  make  a  tender  at  the  last  moment  of  the 
day  specified. (/) 

The  same  question  has  been  similarly  decided  with  reference 
to  the  liability  of  an  indorser,  there  being  no  distinction  between 
the  two  classes  of  cases  in  this  respect. (??t)     One  objection  which 

the  maker  oould  not  sue  till  after  the  third  day,  and  Love  v.  Nelson,  Mart  &  Y.  237, 
is  cited  as  an  authority.  The  head  note  in  this  case  lays  down  the  same  doctrine,  but 
nothing  of  tlie  kind  was  decided.  The  decision  is,  that,  in  Tennessee,  the  maker  of  a 
sealed  note  is  entitled  to  <rrace.  In  Tiiomas  v.  Shoemaker,  6  Watts  &  S.  179,  the 
last  day  of  grace  was  Sunday.  An  action  brought  on  Saturday  was  held  premature. 
Sec  Bank  of  Utica  v.  Wager,  2  Cowen,  712,  766,  S(wage,  C.J.  In  Osborn  v.  Moncure, 
3  Wend.  170,  it  was  held  that  the  maker  is  not  liable  before  the  expiration  of  the  third 
day,  and  if  he  is  sued  before  that  time,  that  advantage  may  be  taken  of  the  error  by 
nonsuiting  the  plaintiff.  In  Hopping  v.  Quin,  12  Wend.  51 7,  it  was  held  that  an  attor- 
ney' could  not  recover  of  a  client  costs  or  money  advanced  in  a  suit  on  a  note  brought 
on  the  last  day  of  grace.  Savage,  C.  J.  said  :  "  It  was  the  duty  of  the  plaintiff  to  have 
known  that  a  suit  could  not  be  brought  on  the  last  day  of  grace,  and  his  bringing  such 
suit  must  be  imputed  either  to  negligence  or  ignorance ;  in  either  case  it  lays  no 
foundation  for  an  action  against  his  client,  who  has  been  the  sufferer." 

( /)  The  cases  which  decide  that  a  maker  may  be  sued  before  the  end  of  the  third 
day  are  Wilson  v.  Williman,  1  Nott  &  McC.  440 ;  McKenzie  v.  Durant,  9  Rich.  61  ; 
Coleman  v.  Ewing,  4  Humph.  241  ;  Greeley  v.  Thurston,  4  Greenl.  479,  but  the  plain- 
tiff was,  in  tiiis  case,  nonsuited,  because  there  was  no  evidence  of  any  demand ;  Lmit 
r.  Adams,  17  Maine,  230 ;  Veazie  Bank  v.  Winn,  40  id.  62  ;  Staples  v.  Franklin  Bank, 
1  Met.  43. 

(k)  Bailer,  J.,  Leftley  n.  Mills,  4  T.  R.  170.  In  Staples  v.  Franklin  Bank,  1  Met. 
43,  Shaw,  C.  J.  said :  "  On  the  whole,  we  think  the  weight  of  authority  is  in  favor 
of  the  conclusion  to  which  we  have  come ;  and  if  it  were  a  new  question,  it  seems  to 
follow,  on  legal  principles,  as  a  fair  and  legitimate  conclusion  from  the  established  fact 
that  the  contract  of  the  acceptor  or  maker  is  broken  by  a  neglect  or  refusal  to  pay  on 
demand,  within  reasonable  time,  on  the  last  day  of  grace,  that  the  holder  may  then 
have  his  remedy  by  action." 
.    (/)    Turlei/,  J.,  Coleman  v.  Ewing,  4  Humph.  241. 

iiii\  Thus,  in  the  following  cases,  it  was  held  that  the  indorser  was  liable  to  a 
suit  before  the  end  of  the  third  day.  Park  v.  Page,  at  Nisi  Prius,  before  Paisons, 
C.  J.,  in  1808,  cited  in  1  Met.  48;  Shed  v.  Brett,  1  Pick.  401.  See  New  England 
Bank  v.  Lewis,  2  Pick.  125  ;  City  Bank  v.  Cutter,  3  id.  414,  where  a  tender  of  the 
amount  of  the  face  of  a  note,  by  the  indorser,  on  the  day  succeeding  the  third  day, 
was  held  bad,  because  interest  was  not  included.  See  Boston  Bank  v.  Ilodgcs,  9  id. 
42\j ,  Church  v.  Clark,  21  id.  310;  Whitwell  v.  Brigham,  19  id.  117  ;  Flint  v.  Rogers, 


il2  NOTES   AND    BILLS.  [CH.  XL 

has  been  urged  against  a  suit  against  an  indorser  before  the  end 
of  the  third  day,  which  does  not  apply  where  the  maker  is  sued 
under  similar  circumstances,  is,  that  in  many  cases  the  indorser 
could  not  get  the  notice  in  time  to  be  of  any  service  to  him.(rt) 
But  the  answer  to  this  is,  that  the  holder,  by  presenting  at  the 
proper  time,  and  depositing  the  notice  in  the  usual  and  proper 
conveyance,  has  done  all  that  could  be  required  of  him  in  the 
way  of  exercise  of  due  diligence  ;  that  the  contrary  rule  would 
create  great  uncertainty,  because  the  right  of  action  would  ac- 
crue at  different  times,  according  to  the  distance  of  the  party 
sued,  and  the  time  must  often  be  left  to  conjecture  ;  and  if  a 

15  Maine,  67  ;  Dennie  v.  Walker,  7  N.  H.  199,  by  Upham,  J.,  who  said  :  "It  may  now 
be  considered  as  settled,  that  notice  may  be  given,  and  suit  brought  against  an  indorser 
on  the  last  day  of  grace,  after  protest  has  been  made,  the  note  being  then  considered 
dishonored."  Manchester  Bank  v.  Fellows,  8  Foster,  302.  In  Crenshaw  ;,'.  M'Kier- 
nan.  Minor,  29.5,  an  averment  of  demand  on  the  maker  on  the  third  day,  and  of  a 
refusal  at  tliat  time,  was  held,  after  verdict,  to  be  a  sufficient  allegation  that  the  maker 
had  not  paid  before  suit  was  brought.  In  Bevan  v.  Eldridge,  2  Miles,  3.53,  it  was  held 
that  an  indorser  was  not  liable  till  after  the  expiration  of  the  third  day.  In  this  case, 
Stroud,  J.  said  :  "  If,  then,  interest  can  be  charged  in  advance  to  the  end  of  the  last  day 
of  grace,  there  can  be  no  propriety  in  treating  any  party  to  a  note  as  in  default,  in 
respect  to  payment,  until  that  day  has  expired."  In  Smith  v.  Bank  of  Washington, 
5  S.  &  R.  318,  the  demand  was  made  May  13th,  and  suit  brought  May  16th.  By 
the  usual  course  of  the  mail,  the  notice  could  not  have  reached  the  defendant,  au 
indorser,  until  the  19th.  Held  premature.  Gibson,  C.  J.  said:  "But  I  think  it  clear 
that,  whether  notice  be  necessary  only  to  enable  the  indorser  to  look  to  his  concern? 
with  the  drawer,  or  whether  it  be  to  apprise  him  that  he  has  encountered  an  im- 
mediate instead  of  a  secondary  liability,  it  is  nevertheless  a  substantive  part  of  the 
plaintiff's  title  to  bring  the  action.  This  was  expressly  decided  in  Hushton  v.  Aspin- 
wall,  Doug.  679,  on  great  consideration,  and,  as  Lord  Mansfield  tells  us,  against  the 
wishes  of  the  court.  l)y  whom  it  was  held,  in  a  case  exactly  like  the  present,  that 
the  want  of  an  allegation  of  notice  of  non-j)ayment  was  fatal,  even  after  verdict ; 
and  this  on  the  ground  that  the  title  of  the  plaintiff  was  not  merely  set  out  defect- 
ively, but  that  he  had  set  out  no  title.  Now,  as  tiie  plaintiff's  title  must  be  com- 
plete before  suit  is  brought,  it  follows  that  the  indorser  must  have  notice  l)cforc  the 
impetration  of  the  suit ;  or  at  least,  that  some  fact  be  averred  and  jjrovcd  that  will 
excuse  the  giving  of  notice  altogether From  certain  facts  the  law  raises  a  con- 
clusive presumption  of  actual  notice,  but  it  is  not  so  absurd  as  to  raise  it  from  facts 
which  negative  all  possibility  that  the  ])resumplion  accords  with  the  truth  of  the  case. 

The  notice,  being  for  the  benclit  of  tlie  indorser,  cannot  be  dispensed  with  ; 

and  it  would  be  extremely  absurd  to  suppose  that  any  benefit  could  flow  from  il  be- 
fore there  was  a  possibility  of  its  having  been  received."  But  in  King  v.  Holmes,  11 
Penn.  Stale,  4.")6,  it  was  held  that  a  notary  might  protest  a  note  at  any  time  after 
3  I'.  M.,  and  claim  his  fees.  In  Castriipie  ;;.  Bernabo,  fi  Q.  B.  498,  the  plaintiff  was 
nonsuited  beciiusc  the  action  was  commenced  at  5  P.  M.,  and  the  notice  could  not, 
by  the  usual  course  of  the  mail,  have  reached  the  defendant  before  4  or  5. 
(n)  Sec  the  n-niark^  of  Gilison,  C.  J.,  cited  supra,  note  m. 


CH.  XI.]  AT    WHAT    TIME   DEMAND   SHOULD    BE   MADE.  413 

certain  time  is  to  be  allowed  to  an  indorser  in  which  to  receive 
notice,  the  same  time  shonld  be  given  him  to  pay  the  demand  in; 
because  otherwise  it  would  be  saying  that  he  was  entitled  to 
receive  the  notice  for  his  benefit,  and  at  the  same  time  declaring 
that  he  should  be  precluded  from  taking  any  advantage  from  it.(o) 
But  it  must  be  observed  that  it  has  been  held  that  the  maker 
is  oidy  liable  after  a  demand,  when  a  demand  is  necessary, {/>) 
which  must  be  made  at  a  reasonable  time, (9)  and  an  in- 
dorser after  the  same,  and  also  after  notice  has  been  deposited 
where,  according  to  the  ordinary  method  of  transportation,  it 
will  reach  him  in  due  time.(r)     With  regard  to  what  hour  shall 


(0)  In  Shed  v.  Brett,  1  Pick.  401,  Parker,  C.  J.  said:  "The  argument  is,  that 
notice  of  the  non-payment  is  essential  to  the  phiintitF's  right  of  action  ;  that  it  is  neces- 
sary to  aver  it  in  the  declaration  as  a  fact  existing  ;  and  that,  as  the  case  shows  this 
could  not  be  true,  the  plaintiff  has  failed  in  an  essential  point.  But  this  argument 
proceeds  upon  tiie  ground  that  there  must  be  an  actual  reception  of  notice  before  tho 
])laintiff  can  sue ;  and  this  is  certainly  fallacious.  If  the  putting  the  letter  into  tho 
post-office  is  notice  in  itself,  which  wo  have  shown,  then  it  was  given  before  the  com- 
niencement  of  the  suit.  And  it  would  be  mischievous  to  decide  otherwise,  for  every 
plaintiff's  right  of  action  would  commence  at  different  times,  according  to  the  distance 
of  the  party  sued  ;  and  the  time  of  suing  must  be  conjectured,  as  it  cannot  fee  known 
when  the  notice  will  be  actually  received.  Besides,  if  the  object  of  waiting  be  to  give 
the  party  opportunity  to  take  up-flie  note,  there  must  be  a  sort  of  double  usance,  for 
the  holder  must  wait  till  his  letter  is  received,  and  for  a  reasonable  time  afterwards  for 
the  party  receiving  it  to  come  and  pay  the  money.  Who  would  take  a  bill  or  note 
remitted  from  New  Orleans  if  this  doctrine  be  correct  ?  And  if  the  parties  liable  bo 
beyond  the  sea,  such  instruments  would  be  mere  waste  paper.  If  the  bill  should  not 
be  accepted,  or  the  indorsed  note  not  paid,  the  unfortunate  holder,  with  property  be- 
longing to  the  drawer  or  indorser  before  his  eyes,  must  remain  an  idle  spectator  of  the 
scramble  of  other  creditors  for  it,  or  suffer  it  to  be  witlidrawn  by  the  debtor  himself, 
without  the  power  of  arresting  it.  This  cannot  be  sound  doctrine ;  an  averment  of 
notice  will  be  sufficiently  proved  by  showing  that  the  steps  necessary  to  give  tlie  notice 
have  been  taken  ;  if  subsequently  received,  it  will  relate  to  the  time  when  it  was  sent; 
if  never  received,  the  fact  of  having  put  it  in  tiie  proper  train  is  enough." 

(/))  Greeley  v.  Thurston,  4  Greenl.  479  ;  Vcazie  Bank  v.  Winn,  40  Maine,  62.  In 
Fierce  v.  Gate,  12  Gush.  190,  Shaw,  G.  J.  said  :  "  The  rule  in  regard  to  notes  like  the  one 
in  question  is,  that  the  note  is  payable  at  any  time  on  actual  demand,  on  the  last  day 
of  grace;  and  if  such  actual  presentment  and  demand  is  so  made,  and  payment  is  not 
made,  the  maker  is  in  default,  and  notice  of  dishonor  may  forthwith  be  given  to  the 
indorser.  But  if  no  presentment  or  demand  is  made  by  the  holder  upon  the  maker, 
the  latter  is  not  in  default  till  the  end  of  the  business  day."  In  Butler  v  Kimball,  5 
Met.  94,  it  was  held  that  the  action  might  be  maintained  when  tlie  writ  is  made  after 
sunset,  and  delivered  to  the  sheriff  the  next  day,  althougli  there  is  no  demand  before 
the  writ  is  made. 

(q)  See  the  cases  cited  infra,  p.  414,  note  s. 

[r]  Manchester  Bank  v.  Fellows,  8  Fost.  302.     In  New  England  Bank  v.  Lewis, 
Pick.  125,  tJie  action  was  brought  before  notice  to  the  indorser,  iliough  it  was  received 
35* 


41-i  NOTES   AKD   BILLS.  [CH.  XL 

be  deemed  reasonable,  the  same  rule  would  apply  here  as  in 
ordinary  cases, (5)  and  the  burden  of  proof  is  upon  the  holder  to 
show  a  demand  at  a  reasonable  hour,(^)  and,  in  the  case  of  an 
indorser,  after  notice  has  been  sent.(?<)     Whether  the  law  is  the 


by  him  on  the  same  day,  and  had  been  put  into  the  hands  of  the  notary  before  the  writ 
was  given  to  the  sheriff.  Held,  that  the  suit  was  prematurely  brought.  See  Stanton 
v.  Blossom,  14  Mass.  116. 

(s)  In  Lunt  v.  Adams,  17  Maine,  230,  the  suit  was  brought  after  demand  made  at 
8  A.  M.  Held  premature.  In  Park  v.  Page,  cited  1  Met.  48,  and  in  Staples  v.  Frank- 
lin Bank,  1  Met.  43,  the  writs  were  served  at  11  A.  M.,  and  it  was  held  that  the  suits 
were  properly  brought.  So  in  McKeuzie  v.  Durant,  9  Rich.  61,  where  the  Avrit  was 
served  at  4  P.  M.  Shed  r.  Brett,  1  Pick.  401,  where  the  action  was  commenced  in  tlic 
evening.  In  Whitwell  v.  Brigham,  19  Pick.  117,  an  acceptor  for  the  drawer's  accommo- 
dation took  up  the  bill  on  the  second  day,  and  commenced  a  suit  against  the  drawer  on 
the  third.  Held  not  premature.  As  to  what  is  considered  a  reasonable  hour  of  the 
day  at  which  to  make  a  demand,  see  infra,  p.  4 1 7,  note  a,  &c.  It  will  be  seen  that,  when 
a  note  is  payable  at  a  bank,  a  presentment  there  at  any  time  within  banking  hours  is  to 
be  considered  reasonable.  The  same  rule  has  been  applied  to  the  case  under  consid- 
eration, and  it  has  been  held,  in  the  following  cases,  that  the  maker  or  indorser  of  a 
note  payable  at  a  bank  was  not  liable  till  after  the  close  of  banking  hours.  Boston 
Bank  v.  Hodges,  9  Pick.  420,  where  the  hours  were  from  9  to  2,  and  an  action  brought 
at  18  minutes  past  9  was  held  premature.  So  Church  v.  Clark,  21  id.  310,  wliere  the 
writ  was  served  at  1  minute  past  12  A.  M.  The  demand  on  the  cashier  at  tlic  bank, 
but  after  business  hours,  was  held  proper  in  Flint  v.  Rogers,  1.5  Maine,  67.  In  Staples 
V.  Franklin  Bank,  1  Met.  43,  an  action  against  a  bank  on  its  own  post-note,  it  was 
contended  that  the  bank  was  not  liable  till  after  the  close  of  business  hours,  and  that 
the  same  rules  applied  as  in  case  of  a  note  payable  there  ;  but  S/iaw,  C.  J.  said :  "  It 
may  be  proper  to  make  a  remark  on  the  point,  that  some  of  tiie  cases  in  Massachu- 
setts manifestly  go  upon  the  ground,  that  when  a  third  person  has  accepted  a  bill  or 
made  a  note  payable  at  a  bank,  or  when,  from  circumstances,  it  may  be  inferred  that 
the  parties  intended  that  the  note  should  be  paid  at  a  bank,  the  maker  has  the  whole 
of  tiie  usual  time  of  banking  hours  to  pay  it.  Tiiis  proceeds  upon  the  ground  that  the 
|)arties  have  entered  into  an  express  or  im])licd  agreement  that  the  note  shall  be  so 
paid  and  treated.  But  when  the  bank  itself  has  undertaken  to  pay  a  sum  on  any  given 
day,  they  are  bound,  like  any  other  promisor,  to  pay  on  demand  on  tiiat  day;  and 
tlie  only  difference,  in  this  respect,  between  a  bank  and  an  individual  is  this,  that  what 
would  be  reasonable  time  for  a  demand  in  case  of  individuals  is  fi.xed,  in  case  of  a 
bank,  by  their  known  usual  hours  of  being  open  for  business.  This  is  the  case  in  regard 
to  common  bank-notes,  and  it  would  be  most  pernicious,  in  regard  to  them,  to  estab- 
lish a  different  rule,  or  raise  a  doubt  respecting  it.  And  a  post-note,  when  by  the 
lapse  of  time  and  the  force  of  the  contract  it  has  become  payable  on  demand,  stands  in 
this  respect  on  the  same  footing  with  a  bank-note,  which  is  payable  on  demand  in  its 
terms." 

(/)  Vcazic  Bank  r.  Winn,  40  Maine,  62. 

(«)  Manchester  Bank  v.  Fellows,  8  Foster,  302,  where  Eastman,  J.  said  :  "  If  the  suit 
is  commenced  a  day  after  the  time  that  notice  is  given,  or  at  any  future  time  after 
notice,  the  proof  is  readily  made  ;  because,  where  the  notice  is  proved,  it  hIiows  for 
itself  to  have  been  before  suit;  but  where,  as  in  this  case,  the  suit  is  instituted  on  tho 
day  of  tho  notice,  no  such  conclusion  is  apparent.     The  evidence  docs  not  show  that 


CH.  XI.]  AT    WHAT   TIME   DEMAND    SHOULD    BE   JIADE.  415 

same  with  reference  to  notes  on  wliich  no  grace  is  allowed,  does 
not  seem  to  be  settled. (;')  We  incline  to  hold,  however,  both  on 
reason  and  on  what  seems  to  be  tl.e  weight  of  authority,  that  a 
note  without  grace  may  be  demanded  within  business  hours  of 
the  day  of  maturity,  and,  if  payment  is  refused,  an  action  may  be 
brought  against  the  maker,  or  notice  be  given  to  an  indorser,  and 
an  action  brought  against  him,  on  the  same  day.(w)  Tiie  ques- 
tion has  never  passed  under  adjudication  in  England,  but  in  one 
of  the  early  cases  we  find  a  difference  of  opinion  on  the  subject 
between  Lord  Kenyon  and  Mr.  Justice  Buller.(a;) 


the  notice  was  given  before  the  suit  was  commenced,  and  the  court  cannot  presume  it. 
And  in  all  such  cases  the  plaintiff  must  prove  that  the  demand  and  notice  wore  before 
the  suits  were  brought,  otherwise  it  does  not  appear  that  they  have  a  cause  of  action. 
The  plaintiffs  in  this  case  having  produced  no  evidence  showing  that  the  notice  was 
put  into  tlie  post-office  at  Boston  before  the  writ  was  served,  it  does  not  appear  that  a 
cause  of  action  existed  at  the  time  of  the  commencement  of  the  suit,  and  the  action 
necessarily  fails." 

[v)  In  Staples  v.  Franklin  Bank,  1  Met.  4.3,  Shaw,  C.  J.  said  :  "  A  different  con- 
struction may  perhaps  apply  when  a  note  is  payable  without  grace.  As  grace  was 
originally  matter  of  indulgence  and  courtesy,  and  not  of  contract,  it  perhaps  may  be 
contended  that,  although  a  debtor  has  the  whole  of  the  last  day  of  the  credit  stipulated 
for  by  contract  to  make  payment,  yet  a  different  rule  may  apply  to  grace,  which  is  not 
part  of  the  contract.  So  when  the  third  day  of  grace  frills  on  Sunday,  as  the  right  of 
one  or  the  other  of  the  parties  must  yield,  it  shall  be  that  of  the  one  who  claims  indul- 
gence, and  not  of  him  who  claims  of  right;  whereas,  if  a  bond  were  to  be  payable  on 
Sunday,  the  debtor  would  have  till  the  close  of  Monday  to  pay  it.  Some  of  the  cases 
appear  to  turn  on  this  distinction."  In  Taylor  v.  Jacoby,  2  Penn.  State,  495,  an  action 
on  a  note  where  no  grace  was  allowed,  it  was  held  that  the  note  was  not  due,  for  tha 
purpose  of  commencing  suit  or  entering  judgment,  until  after  the  termination  of  the 
day  of  payment.  It  has  already  been  seen,  that  when  a  note  without  grace  falls  due  on 
Sunday,  it  is  not  payable  until  the  next  secular  day.     Supra,  p.  402. 

(iv)  In  Staples  i'.  Franklin  Bank,  cited  in  the  preceding  note,  the  court  appears  to 
incline  to  the  views  expressed  in  the  text.  , 

(x)  Leftley  v.  Mills,  4  T.  R.  170.  In  Colkett  v.  Freeman,  2  T.  R.  59,  it  was  held 
that  an  express  refusal  in  the  morning  to  a  holder  to  pay  a  bill  constituted  a  complete 
act  of  bankruptcy,  though  several  of  the  jury,  which  was  a  special  one,  said  that  by  the 
practice  of  London  merchants  the  payor  has  the  whole  day  of  maturity  till  five 
o'clock,  P.  M.,  within  which  to  pay.  In  Hume  v.  Peploe,  8  East,  168,  a  plea  of  a 
tender  of  all  the  money  due  on  a  bill,  after  the  day  of  payment,  was  held  not  to  be  a 
good  plea  in  bar,  because  it  did  not  show  a  performance  of  the  contract.  So  Poole  v. 
Tumbridge,  2  M.  &  W.  223,  where  Lord  Ahinger  said  :  "  I  will  not  say  that  if  this  case 
arose,  that  the  acceptor  went  on  the  day  the  bill  became  due  to  the  house  of  the  holder 
for  the  purpose  of  paying  it,  and  could  not  find  him,  but  on  a  subsequent  day,  when  he 
found  him,  tendered  him  the  money,  I  am  not  prepared  to  say  that,  in  such  case, 
the  rules  of  law  ought  to  be  pressed  so  far  as  to  render  the  party  liable  to  an  action  the 
next  day  after  the  bill  becomes  due,  and  not  to  allow  him  to  plead  that  tender,  by  which 
means  the  proceedings  of  a  court  of  law  are  made   nothing  else  but  machinery  to 


416  NOTES   AND   BILLS.  [CH.  XL 

A  note  may  be  negotiated  on  the  second  day  of  grace,  and  the 
holder  will  then  be  protected ;  [y)  but  if  negotiated  on  the  third, 
there  is  a  conflict  of  authority  on  the  question  whether  the  note 


increase  costs."  In  Ex  parte  Moline,  19  Ves.  216,  1  Rose,  303,  it  was  held  that  a  de- 
mand on  the  acceptor,  at  11  A.  M.,  and  notice  of  non-payment  to  the  drawer  the  same 
niornini;,  warranted  the  proof  of  the  debt  against  the  drawer,  who  had  become  bank- 
rupt. In  Staples  v.  FranlcHn  Bank,  1  Met.  43,  Shuiv,  C.  J.  said :  '•  In  a  late  work, 
Byles  on  Bills,  p  131,  it  is  stated  that  the  acceptor  of  a  bill,  whether  inland  or  foreign, 
or  the  maker  of  a  note,  should  pay  it  on  a  demand  made  at  any  time  within  business 
hours  on  the  day  it  falls  due,  and  if  it  be  not  paid  on  such  demand,  the  holder  may 
instantly  treat  it  as  dishonored.  But  the  acceptor  has  the  whole  of  that  day  within 
which  to  make  payment ;  and  though  he  should  in  the  course  of  that  day  refuse  pay- 
ment, wliich  entitles  the  holder  to  give  notice  of  dishonor,  yet  if  he  subsequently  on 
the  same  day  makes  payment,  the  payment  is  good,  and  the  notice  of  dishonor  be- 
comes of  no  avail.  This  writer  cites  Hartley  v.  Case,  1  Car.  &  P.  555,  676,  4  B.  &  C. 
339.  The  point  was  made  in  that  case,  that  notice  could  not  be  given  on  the  day  the 
note  becomes  due  ;  but  the  case  went  off  on  another  ground,  and  no  opinion  was 
given  on  this  question.  The  passage  cited  appears  contradictory  to  itself,  inasmuch 
as  it  declares  that  the  note  is  due  and  payable  on  demand  on  the  last  day  of  grace, 
and  is  dishonored  if  not  then  paid ;  and  yet  that  the  maker  and  acceptor  have  tho 
whole  day  to  pay  it  in.  It  would  seem  that  there  could  be  no  dishonor,  unless  the 
maker  had  failed  to  comply  with  his  contract ;  and  if  he  has  failed  to  comply  with  iiis 

contract,  then,  by  a  general  rule  of  law,  the  holder  has  his  remedy  by  action 

It  is  probable,  that,  though  the  holder  may  have  a  strict  right  to  proceed  in  all 
respects  as  upon  a  dishonored  bill  on  the  last  day,  after  demand,  refusal,  and  notice, 
yet  it  is  so  far  the  general  practice  to  postpone  notice  and  other  proceedings  till 
the  day  following,  that  it  is  regarded  amongst  merchants  as  a  right.  That  it  seems 
so  to  have  been  understood  by  men  of  business,  appears  by  a  remark  of  Mr.  Ju.stice 
Bidhr,  in  Colkett  v.  Freeman,  2  T.  R.  59,  61  ;  and  also  by  an  obiter  dictum  of  Bolland, 
B.,  in  Webl)  v.  Fairmaner,  3  M.  &  W.  473,  474  (supra,  p.  405,  note  /).     But  the  case 

of  negotiable  bills  and  notes  was  not  then  under  consideration I'ossibly  it 

may  be  considered  that  the  holder  has  a  right  to  treat  the  bill  as  dislionored,  after  de- 
mand and  refusal,  and  even  to  commence  an  action,  subject  to  be  defeated  and  barred 
in  case  the  maker  should  pay  the  amount  due  at  any  time  on  the  last  day  of  grace ; 
though  it  is  dillicult  to  perceive  how  the  holder  can  have  a  perfect  right  to  treat  tho 
note  as  dishonored,  by  breach  of  the  contract,  and,  at  the  same  time,  that  the  acceptor 
can  have  a  perfect  right,  by  payment  of  the  bill,  to  perform  his  contract,  and  save 
himself  from  the  consequences  of  such  breach.  In  Hartley  v.  Case,  1  Car.  &  P.  556, 
Ahhott,  V.  J.,  on  a  motion  to  show  cause,  says:  '  I  think  notice  of  dishonor,  given  on 
the  day  on  which  the  bill  is  payable,  will  be  good  or  bad,  as  the  acceptor  may  or  may 
not  afterwards  pay  the  bill.  If  he  does  not  afterwards  pay  it,  the  notice  is  good  ;  and 
if  he  does,  it  of  course  comes  to  nothing.'  This  certainly  implies  that,  after  non-pay- 
ment on  demand,  on  any  part  of  the  last  day,  there  is  a  breach  of  the  contract  of  tho 
maker,  and  no  further  demand  is  necessary  to  complete  the  holder's  right  against  tho 
maker,  acceptor,  and  indorsers.  But  whether,  after  such  breach,  and  before  the  closo 
of  the  day,  an  action  might  be  commenced  against  either,  does  not  appear  liy  this  case, 
nor,  as  we  believe,  by  any  case  decided  in  England  "     In  Chitty  on  Bills,  274,  10th 

(j/)  Savings  Bank  v.  Bates,  8  Conn.  505. 


CH.  XI.]  AT    WHAT    TIME    DEMAND    SHOULD    I5E    MADE.  417 

is  dishonored. (s)  We  should  eonsidcr  the  correct  rule  to  be,  that 
where  the  note  is  payable  generally,  it  is  not  dishonored  until  the 
close  of  the  day,  and  when  payable  at  a  bank,  not  until  the  close 
of  bank  hours. 

It  is  the  usage  of  all  our  banks  to  consider  notes  and  bills 
discounted  by  them,  or  left  with  them  for  collection,  whetiier 
payable  at  the  bank  or  generally,  as  dishonored  at  the  close  of 
business  hours,  wliich  are  then  tiio  bank  hours,  on  the  day  of 
maturity.  And  the  paper  is  then  handed  to  a  notary  for  demand 
and  protest.  And  undoubtedly  this  usage  would  determine  the 
rights  and  obligations  of  the  parties  in  any  case  to  which  it 
applied. 

The  hours  within  which  presentment  for  payment  and  for  ac- 
ceptance should  be  made  are  the  same  in  both  cases.  In  the 
case  of  paper  not  payable  at  a  bank,  demand  may  be  made  on  the 
payor  personally,  or  on  his  authorized  agent,  at  any  reasonable 
hour  of  the  day,  even  so  late  as  nine  o'clock  in  the  evening. (a) 


Lond.  cd.,  the  question  is  discussed,  whether  the  acceptor  has  the  whole  day  or  not 
for  payment.  The  author  says  that  the  hokler  may  treat  the  bill  as  dishonored  on 
the  third  day  ;  and  tiiat  this  "  appears  now  to  be  the  established  rule."  In  Castrique 
t.  Bernaho,  6  Q.  B.  498,  which  was  an  action  against  an  indorser,  it  appeared  that  the 
notice  was  put  into  the  mail  the  same  day  the  action  was  commenced.  It  was  held 
that  the  plaintiff  was  bound  to  show  that,  in  the  ordinary  course  of  the  mail,  the  letter 
would  he  delivered  before  the  time  of  the  commencement  of  the  action. 

[z)  The  note  is  held  dishonored  in  Pine  v.  Smith,  11  Gray,  and  not  dishonored 

in  Crosby  v.  Grant,  36  N.  H.  275.  The  two  cases  rest  probably  on  the  difference  be- 
tween tlic  time  when  the  right  of  action  commences  in  the  two  States. 

(a)  In  Burbridge  v.  Manners,  3  Camp.  193,  a  demand  was  made  in  the  forenoon,  and 
held  good.  Ex  parte  Moline,  19  Ves  216,  a  demand  on  an  acceptor  at  11  A.  M.,  and 
notice  sent  immediately,  were  held  to  warrant  a  proof  of  the  debt  against  the  drawer, 
who  had  become  bankrupt.  Lord  Eldon  said  :  "I  do  not  recollect  any  decision,  that,  if 
an  acceptor  declares  at  11  o'clock  in  the  morning  that  he  will  not  pay,  notice  of  that  to 
the  drawer  is  not  good.  If  the  law  does  not  impose  on  the  holder  the  duty  of  inquiring 
again  before  5  o'clock,  it  would  be  extraordinary  that  this  information  to  the  drawer  of 
an  answer  precluding  any  hope  of  obtaining  anything  by  calling  again  should  not  have 
effect."  In  Leftley  v.  Mills,  4  T.  R.  170,  BuUer,  J.  said  :  Bills  of  exchange  "are  pay- 
able at  any  time  on  the  last  day  of  grace,  provided  that  demand  be  made  within  rea- 
sonable hours.  A  demand  at  a  very  early  hour  of  the  day,  at  two  or  three  o'clock  in 
the  morning,  would  be  at  an  unreasonable  hour ;  but,  on  the  other  hand,  to  say  that  the 
demand  should  be  postponed  till  midnight,  would  be  to  establish  a  rule  attended  with 
mischievous  consequences."  So  Greeley  v.  Thurston,  4  Greenl.  479.  In  Dana  v.  Saw- 
yer, 22  Maine,  244,  where  the  maker  was  called  up  from  iiis  bed  a  few  minutes  before 
midnight,  the  demand  was  held  insufficient.  S/icpleij,  J.  said :  "  Perhaps  it  might  be  proper 
to  admit  an  exception  in  this  and  the  like  cases,  if  it  should  appear  from  the  answer 
made  to  the  demand  that  there  was  a  waiver  of  any  objection  as  to  the  time,  or  that 

Vol.  I.— 2  B 


418  NOTES   AND   BILLS.  [CH.  XL 

No  fixed  rule  can  be  laid  down  beyond  which  a  presentment  will 
be  unreasonable  and  insufficient  to  charge  an  indorser.  In  gen- 
eral, it  should  be  made  at  such  an  hour  that,  having  regard  to 
the  habits  and  usages  of  the  community  where  the  maker  resides, 
he  may  reasonably  be  expected  to  be  in  a  condition  to  attend  to 
ordinary  business.  Various  other  circumstances  are  to  be  taken 
into  consideration,  such  as  the  distance  of  the  place  of  resi- 
dence of  tlie  maker  from  the  place  where  the  note  was  dated, 
and  where  the  holder  at  maturity  was  residing,  and  the  season 
of  the  year  when  it  fell  due.(^)  When  a  note  or  bill  is  payable 
at  a  bank,  or  at  a  banker's,  it  must  be  presented  within  busi- 
ness hours. (c)     But  if  presented  after  that  time,  while  any  of  tlie 


payment  would  not  have  been  made  upon  a  demand  at  a  reasonable  hour.  But  there 
is  nothing  in  this  agreed  statement  to  show  that  payment  might  not  have  been  refused 
because  the  demand  was  made  at  such  an  hour  that  the  maker  did  not  choose  to  be  dis- 
turbed, or  because  he  could  not  then  have  access  to  funds  prepared  and  deposited  else- 
where for  safety."  In  Farnsworth  v.  Allen,  4  Gray,  453,  a  note  dated  at  Boston,  falling 
due  in  August,  was  presented  at  9  P.  M.  to  the  maker  at  his  residence,  ten  miles  from 
Boston,  after  he  and  his  family  had  retired.  The  maker  refused  to  pay.  Held  sulH- 
cient.  Sec  Lunt  v.  Adams,  17  Maine,  230,  infra,  p.  420,  note  /;  Park  v.  Page,  infra, 
p.  420,  note  e. 

(b)  Bic/elow,  J.,  Farnsworth  v.  Alien,  4  Gray,  453,  supra,  note  a.  There  are  various 
dicta  to  the  effect  that  a  presentment  after  "  the  hour  of  rest "  would  be  unavailing. 
Thus,  in  Barclay  v.  Bailey,  2  Camp.  527,  Lord  EUenhorough  said :  "  If  tiie  presentment 
had  been  during  the  hours  of  rest,  it  would  have  been  altogether  unavailing."  So  Best, 
C.  J.,  Triggs  V.  Newnham,  10  J.  B.  Moore,  249.  In  Wilkins  v.  Jadis,  2  B.  &  Ad. 
188,  Lord  Tcntcrden,  C.  J.  said  :  "  A  presentment  at  12  o'clock  at  niglit,  when  a  person 
has  retired  to  rest,  would  be  unreasonable."  So  Shepley,  J.,  Dana  v.  Sawyer,  22  Maine, 
244.  In  Cayuga  Co.  Bank  v.  Hunt,  2  Hill,  635,  Cowen,  J.  said,  that  business  hours 
"generally  range  through  the  whole  day  down  to  bedtime  in  the  evening."  But  this 
cannot  mean,  that  the  mere  fact  that  the  maker  had  retired  to  bed  in  the  evening  before 
the  demand  would  make  it  unreasonable.  Tlius,  in  Farnsworth  v.  Allen,  4  Gray,  453, 
supra,  note  a,  Digelow,  J.  said  :  "  It  is  quite  immaterial  that  the  maker  and  his  family 
had  retired  for  the  night.  The  question  whctiier  a  presentment  is  within  reasonable 
time  cannot  be  made  to  depend  on  the  private  and  peculiar  habits  of  the  maker  of  the 
note,  not  known  to  the  holder;  hut  it  must  be  determined  by  a  consideration  of  the 
circumstances  which,  in  ordinary  cases,  would  render  it  sca.sonable  or  otherwise," 

(c)  Parker  v.  Gordon,  7  East,  385,  where  a  demand  at  6  P.  M.  was  held  insufiicient, 
the  banker's  hours  ending  at  5.  Lord  KllcHhorowjh,  C-  J. :  "  If  a  party  choose  to  take 
an  acceptance,  payable  at  an  appointed  place,  it  is  to  be  presumed  that  he  will  inform 
himself  of  the  projjcr  time  for  receiving  payment  at  such  place,  and  ho  must  apply  ac- 
cordingly ;  and  if  by  going  there  out  of  due  time  the  bill  be  not  paid,  it  is  his  own 
fault,  and  he  cannot  proceed  as  upon  a  dishonor  of  it ;  at  least  not  without  goitig  a 
step  further,  and  presenting  it  for  payment  to  the  party  liimself ;  otherwise  it  is  fishing 
for  the  dishonor  of  a  bill  made  payable  at  a  banker's,  to  present  it  there  for  payment  at 
a  time  when  it  is  known  in  the  usual  course  of  business  that  it  cannot  be  paid"    So  in 


CH.  XI.]  AT   WHAT    TIME   DEMAND    SHOUIJ)   BE    MADE  419 

officers  arc  present  to  give  an  answer  at  the  time  of  the  de- 
mand, it  will  be  sufficient. (f/)  There  is  this  difference,  also, 
between  a  demand  on  the  payor  at  his  residence,  and  one 
at  his  place  of  business ;  in  the  former  case  it  may  be  made 
at  any  hour  of  the  day  or  evening  when  he  may  reasona- 
bly be  expected  to  be  able  to  attend  to  business  ;  (<?)   but   if 


Elford  V.  Teed,  1  Maule  &  S.  28,  a  presentment  by  a  notary's  clerk,  between  6  and  7 
P.  M.,  was  held  insufficient,  and  that  no  presumption  of  a  prior  presentment  within 
bankin<5  hours  could  be  made  from  the  fact  that  demand  was  made  by  the  clerk.  Sec 
Boston  Bank  v.  Hodges,  9  Pick.  420;  Church  v.  Clark,  21  id.  310;  cited  supra,  p.  414, 
note  s.  Where,  by  the  usage  of  a  bank  at  which  a  note  is  made  payable,  the  payor  is 
allowed  until  the  expiration  of  banking  hours  for  payment,  a  demand  before  that  time 
is  insufficient,  unless  the  note  is  permitted  to  remain  in  the  bank  till  the  close  of  busi- 
ness hours.  Planters'  Bank  v.  Markham,  5  How.  Miss.  397  ;  Harrison  v.  Crowder,  6 
Smedes  &  M.  464.  In  Whitaker  v.  Bank  of  England,  6  Car.  &  P.  700,  1  Cronip.  M. 
&  R.  744,  an  action  against  the  bank,  by  a  customer  who  had  accepted  a  bill  payable 
there,  for  not  honoring  tlie  acceptance,  it  was  proved  that  the  bill  was  presented  at  9 
A.  M.,  and  left  till  11  A.  M.,  when  payment  was  demanded.  A  demand  was  again 
made  by  the  notary  at  6  P.  M.,  after  banking  hours.  The  court  held  that  the  note 
must  be  considered  as  continuing  in  a  course  of  presentment  from  9  to  1 1  ;  that  if  the 
bank  had  funds  at  a  reasonable  time  before  11,  they  were  liable  ;  but  that  they  were  not 
liable  to  pay  after  banking  hours,  even  though  they  had  funds,  and  had  a  person  sta- 
tioned there  who  answered,  "  Not  sufficient  effects."  A  demand  on  a  bank  of  a  note  in 
which  the  bank  itself  is  the  maker,  made  before  11  A.  M.,  was  held  good.  Staples  v. 
Franklin  Bank,  1  Met.  43,  supra,  p.  414,  note  s. 

(d)  Garnett  v.  Woodcock,  1  Stark.  475,  6  Maule  &  S.  44,  where  the  bill  was  present- 
ed between  7  and  8  P.  M.,  and  a  boy  returned  the  answer,  "  No  orders."  Lord  Elkn-> 
horowjh  said  :  "  Bankers  do  not  usually  pay  at  so  late  an  hour ;  but  if  a  person  be  left 
there  who  gives  a  negative  answer,  there  is  no  difference  between  the  case  and  that  of 
a  presentment  at  a  merchant's.  I  think  it  is  perfectly  clear,  that  if  a  banker  appoint  a 
person  to  attend  in  order  to  give  an  answer,  a  presentment  would  be  sufficient  if  it 
were  made  before  12  at  night.  In  general  there  are  two  presentments,  one  in  the 
morning,  and  the  other  in  the  evening ;  but  if  there  be  a  presentment  in  the  evening, 
and  the  party  is  ready  to  give  an  answer,  he  does  all  that  is  necessary.  The  bank  re- 
turned an  answer  by  the  mouth  of  its  servant,  and  non  constat  but  that  he  was  stationed 
there  for  the  express  purpose."  Henry  v.  Lee,  2  Chitty,  124  ;  Shepherd  v.  Chamber- 
lain, 8  Gray,  225  ;  Flint  v.  Rogers,  15  Maine,  67  ;  Commercial  Bank  v.  Hamer,  7  How. 
Miss.  448,  where  the  notary,  finding  the  front  door  shut,  entered  by  the  back  door 
and  demanded  payment  of  the  teller,  who  said  that  there  were  no  funds ;  Cohea  v. 
Hunt,  2  Smedes  &  M.  227;  Goodloe  v.  Godley,  13  id.  233;  Bank  of  Syracuse  v. 
HoUister,  17  N.  Y.  48,  where  the  paying  teller,  being  a  notary,  presented  the  note 
to  himself  outside  the  bank  doors,  which  were  shut;  Bank  of  Utica  v.  Smith,  18 
Johns.  230. 

(e)  In  Barclay  v.  Bailey,  2  Camp.  527,  presentment  was  made  at  the  place  desig- 
nated as  the  acceptor's  residence,  at  8  o'clock,  P.  M.  An  answer  was  given,  that  the 
acceptor  had  become  bankrupt,  and  had  removed.  The  defendant,  the  drawer,  proved 
that  he  had  stationed  a  person  at  the  house,  to  take  up  the  bill,  from  9  A.  M.  to  4  P.  M. 
Held,  that  the  demand  was  sufficient.^    Lord  Ellenbcrougk  said  :  "  I  think  this  present- 


420  NOTES   AND   BILLS.  [CH.  XI. 

demand  be  made  at  the  place  of  business,  it  must  be  made  within 
the  usual  and  ordinary  business  hours. (/)  But  no  objection 
can  be  made  to  the  demand  at  either  place  at  any  hour,  if  the 
payor  had  his  agent  there  at  that  hour  to  make  answer  to  the 
demand,  (o") 

ment  sufficient.  A  common  trader  is  different  from  a  banker,  and  has  not  any  peculiar 
hours  for  paying  or  receiving  money.  If  the  demand  had  been  made  during  the  hours 
of  rest,  it  would  have  been  altogether  unavailing,  but  eight  in  the  evening  cannot  be 
considered  an  unreasonable  hour  for  demanding  payment  at  the  house  of  a  private  in- 
dividual who  has  accepted  a  bill."  So  Wilkins  v-  Jadis,  2  B.  &  Ad  188.  In  Park  v. 
Page,  at  Nisi  Prius,  before  Parsons,  C.  J.,  in  1808,  cited  1  Met.  48,  a  demand  before 
11  A.  M.  was  held  good.     See  the  cases  cited  supra,  p.  418,  note  c. 

(  f)  Shed  V.  Brett,  1  Pick.  401.  This  would  only  apply  where  there  are  regularly 
established  business  hours.  See  Dana  v.  Sawyer,  22  Maine,  244.  In  England  it 
would  seem  that  the  hours  within  which  demand  may  be  made  at  any  other  place  than 
the  bank  or  a  banker's  may  extend  so  late  as  7  or  8  P.  M.  Thus,  in  Morgan  v. 
Davison,  1  Stark.  114,  Lord  Ellenhorough  held  that  a  demand  at  a  counting-room 
between  6  and  7  P.  M.,  when  no  one  was  present  but  a  girl  to  take  care  of  it,  was 
sufficient ;  as  "  the  hour  was  not  an  improper  one,  and  the  holder  might  reasonably 
expect  to  find  the  party  in  his  counting-house  at  that  hour.  In  Triggs  v.  Newnham, 
I  Car.  &  P.  631,  10  J.  B.  Moore,  249,  a  presentment  of  a  bill  payable  at  an  attorney's 
office  at  8  P.  M.  was  held  sufficient.  In  Lunt  v.  Adams,  17  Maine,  230,  demand 
was  made  on  the  maker  at  his  store  at  8  A.  M.  Held  insufficient.  Shcpley,  J.  said : 
"  There  may  be  little  difficulty  in  towns  and  cities,  where  there  arc  business  on  bank- 
ing hours,  in  deciding  that  a  demand  should  be  made  during  those  hours.  But  in 
places  where  no  particular  hours  are  known  for  making  and  receiving  payments  there 
is  more  difficulty  in  determining  what  would  be  a  reasonable  hour  for  this  purpose.  It 
may  often  happen  that  the  party  having  a  payment  to  make  would  appropriate  the 
earlier  part  of  the  day  to  obtain  the  means,  either  by  collecting  or  by  procuring  a  loan 
from  a  bank  or  from  some  person  in  a  neighboring  town.  To  establish  a  rule  that 
would  deprive  him  of  that  opportunity,  and  subject  him  to  a  suit,  and  that  would  ren- 
der him  liable  to  have  his  business  broken  up  while  thus  employed,  might  justly  be 
regarded  as  unreasonable.  Tiie  general  rule  being  that  the  party  has  all  the  day  to 
make  his  payment,  that  in  relation  to  bills  and  notes  should  not  be  so  varied  as  to 
prevent  his  having  a  fair  opportunity  to  make  arrangements  and  provide  the  means  of 
payment  before  he  is  subjected  to  a  suit.  In  this  case  the  demand  was  made  at  an 
hour  so  early  as  to  deprive  him  of  that  opportunity,  and  it  was  not,  therefore,  made  at 
a  reasonable  hour."  In  Cayuga  Co.  Bank  v.  Hunt,  2  Hill,  63,'j,  Cowen,  J.  said,  that 
business  hours,  "except  where  the  paper  is  due  from  the  bank,  generally  range  through 
the  whole  day  down  to  bedtime  in  the  evening."  But  this,  it  is  conceived,  would  vary 
according  to  the  custom  of  each  place. 

{g)  See  the  cases  cited  supra,  note  d.  Where  the  payor  and  payee  arc  willing,  the 
one  to  make  and  the  other  to  receive  payment  at  any  hour,  and  the  payor  is  to  acquire 
some  right  as  against  a  third  party  on  paying,  such  third  party  cannot  object  to  the 
demand  because  it  was  made  at  an  unreasonable  hour.  Thus,  in  Whitwell  v.  Brig- 
ham,  19  Pick.  117,  the  acceptor  of  a  bill  for  the  accommodation  of  tlie  drawer,  having 
paid  the  bill  on  the  second  day  of  grace,  commenced  a  suit  again.«t  the  ilrawcr  at  <> 
o'clock,  A.  M.  ;  and  the  suit  was  held  not  to  be  i»remature,  on  flie  ground  ilmi  tl,e 
I)ayment  might  a,s  well  have  been  made  at  any  previous  hour  of  the  third  (la\ 


CH.  XI.]  AT   WHAT    PLACE   DEMAND    SHOULD   BE   MADE.  421 

It  may  here  be  remarked,  that  a  notary's  certificate  of  present- 
ment, which  does  not  state  the  time  of  day,  carries  with  it  the 
presumption  that  the  demand  was  made  at  a  proper  hour,  when 
nothing  appears  to  the  contrary. (A) 


SECTION     VI. 

AT   WHAT   PLACE   DEMAND   SHOULD   BE   MADE. 

The  principles  of  law  applicable  to  the  question,  where  the 
demand  should  be  made,  are  very  different  in  case  of  a  note  or 
bill  payable  generally  and  one  in  which  a  place  of  payment  is 
specified.  We  will  first  consider  the  rule  with  reference  to  notes 
in  which  no  place  is  mentioned  for  payment. 

We  should  say  that,  in  general,  a  personal  demand  would  be 
sufficient,  if  made  on  the  maker  or  acceptor  at  any  place  where 
he  may  reasonably  be  expected  to  be  in  a  condition  to  pay ;  and 
if  made  in  any  other  place,  —  such,  for  instance,  as  the  street, 
—  it  would  usually  be  good,  unless  objection  were  made  to  pay- 
ment because  the  place  was  an  improper  one,  or  some  similar 
reason  were  given  for  the  refusal,  (i) 

But  a  personal  presentment  is  not  necessary  ;  (j)  and  in  case 
such  a  one  is  not  made,  in  the  absence  of  circumstances  which 
amount  to  an  excuse  for  demand,  that  demand  must  be  made 
where  the  maker  resides,  or  at  his  usual  and  ordinary  place  of 
business.  (A;) 


(h)  Cayuga  Co.  Bank  v.  Hunt,  2  Hill,  635;  De  Wolf  r.  Murray,  2  Sandf.  166. 

(i)  Supra,  p.  372,  note  z.  In  Baldwin  v.  Farnsworth,  1  Fairf.  414,  presentment  \va« 
made  to  both  promisors  of  a  joint  and  several  note,  made  payable  at  their  dwelling- 
houses,  at  the  bam-yard  of  one  of  the  makers.  Held  sufficient,  as  they  "  made  no  objec- 
tion, and  intimated  no  readiness  to  pay  in  the  house." 

(j)  The  contrary  is  stated  in  Duke  of  Norfolk  v.  Howard,  2  Show.  235,  supra,  p. 
371,  note  y,  but  does  not  seem  to  have  been  followed.  In  Saundcrson  v.  Judge,  2  H. 
Bl.  509,  it  is  said  that  "  it  is  not  necessary  that  a  demand  should  be  personal,  and  il 
is  sufficient  if  it  be  made  at  the  house  of  the  maker  of  tlie  note."  So  in  M'Gruder  v. 
Bank  of  Washington,  9  Wheat.  198,  Johnson,  J.  said  :  "  A  demand  on  the  maker  is, 
in  general,  indispensable,  and  that  demand  must  be  made  at  his  place  of  abode  or 
place  of  business.  That  it  should  be  strictly  personal  is  not  required.  It  is  enough  if 
it  is  at  his  place  of  abode,  or  generally  at  the  place  where  he  ought  to  be  found." 

(k)  In  Sussex  Bank  v.  Baldwin,  2  Harrison,  487,  it  was  contended  that  the  de- 
Viand  ought  to  have  been  at  the  maker's  house ;  but  Dayton,  J.  said  :  "  It  appears 

VOL.  I.  36 


422  NOTES   AKD   BILLS.  [CH.  XL 

It  is  clear  that  a  demand  at  the  place  of  business,  without  any 
at  the  place  of  abode,  is  sufficient,(/)  and  this  ordinarily  would 
be  the  safest  and  most  proper  place  to  present  the  note.  It  is 
said  that  a  demand  at  the  maker's  house  would  be  equally 
good,(m)  but  it  may  be  doubted  whether  this  is  not  subject  to 
some  qualification. 

by  the  evidence  that  the  oflBce  in  question  was  the  regular  place  of  business  of  the 
maker ;  and  I  have  no  doubt  where  a  person  has  an  office,  or  known  and  settled  place 
of  business  for  the  transaction  of  his  monied  concerns,  whether  he  be  a  banker,  broker, 
merchant,  manufacturer,  mechanic,  or  dealer  in  any  other  way,  a  presentment  and  de- 
mand at  that  place,  as  well  as  a  presentment  and  demand  at  his  residence,  is  good  in 
law.  It  must  not,  however,  be  a  place  selected  and  used  temporarily  for  the  transaction 
of  some  particular  business,  as  settling  up  some  old  books  or  accounts  merely,  but 
his  regular  and  known  place  of  business  for  the  transaction  of  his  monied  concerns. 
The  counting-room  of  a  banker  or  merchant  may  be  a  proper  place  for  a  demand, 
though  the  manufactory  or  workshop  would  not.  Yet  if  the  manufacturer  or  mechanic 
have  an  office  or  known  place  of  business  for  the  purpose  aforesaid,  a  good  demand 
may  be  made  there."  In  West  v.  Brown,  6  Ohio  State,  542,  Bowen,  J.  remarked : 
"  It  is  said  that  the  demand  ought  to  have  been  made  at  the  maker's  family  residence, 
and  could  not  be  made  elsewhere,  as  he  had  no  well-established  business  office.  It 
seems  that  he  occupied  a  room  at  Harding's,  where  he  directed  calls  to  be  made,  and 
where  he  received  them.  By  his  own  acts  and  declarations  he  authorized  the  place  to  be 
known  as  his  office  for  transacting  business.  He  apprised  the  public  that  he  could  be 
found  there,  that  '  word  left  there  would  find  him.'  He  claimed  no  other  business  loca- 
tion. He  gave  no  directions  or  authority  for  calling  on  him  for  business  purposes  at 
his  residence.  His  desire  was  to  have  an  office  for  doing  business,  wlicrc  he  might  con- 
veniently and  with  certainty  be  found,  and  a  selection  of  such  place  he  accordingly 
made  at  Mr.  Harding's,  where  he  was  sought  i)y  the  notary  public,  but  when  applied  for 
happened  to  be  out.  The  object  of  the  visit,  however,  was  fully  cxi)lained  to  those 
who  were  found  in  the  office.  We  are  satisfied  that  reasonable  diligence  in  this  case 
was  used  by  the  holder  of  the  note  to  obtain  payment  from  the  maker,  and  that  the 
claim  that  no  demand  of  payment  was  made  of  him  is  not  well  founded." 

(I)  See  the  cases  cited  supra,  note  k;  also  Nott  v.  Beard,  16  La.  .308. 

(wi)  In  Sliamhurgh  v.  Commagere,  10  Mart.  La.  18,  Porter,  J.  said:  "A  man's  resi- 
dence is  tlie  place  where  it  is  jn-csunied  he  is  to  be  found,  and  has  funds  to  meet  the 
demand,  and  there  is  no  obligation  on  the  holder  to  seek  for  him  elsewhere."  In  Oak- 
ey  V.  Beauvais,  1 1  La.  487,  Carletou,  J.  said,  that  demand  must  be  made  personally,  or 
at  the  domicil  of  the  maker,  to  bind  an  indorser.  By  "domicil,"  it  is  presumed  "place 
of  residence"  at  the  time  of  maturity  was  intended.  In  Deyraud  i'.  Banks,  IG  I^a. 
461,  the  iirotest  stated  that  the  notary  demanded  payment  at  the  domicil  of  the  maker, 
and  w;us  answered  that  there  were  no  funds  there  to  pay  it.  Held  sufficient  evidence 
of  a  demand  to  charge  the  maker  and  indorser.  So  in  Stivers  v.  Prentice,  .1  B.  Mon 
461,  it  was  held  that  a  "presentment  of  a  bill  at  tlie  dwelling-house  of  the  acceptor, 
in  the  absence  of  any  proof  of  a  special  usage  to  the  contrary,  and  he  not  being  a 
liHiiker.  was  sufficient;  and  especially  as  tiiere  was  one  there  wiio  answered  for  him, 
that  no  provision  had  been  made  for  jjayment."  In  Story  on  Bills,  ^  2.36,351,  Prom. 
Notes,  (j  2.35,  it  is  said,  where  the  maker  or  acceptor  lives  in  one  town  and  does  busi- 
ness in  another,  or  where  he  resides  in  one  part  of  a  town  and  his  place  of  business  is 
anoliicr  part,  that  the  holder  has  his  oi)ti()n  at  which  to  present,  and  that  a  demaad  at 


CH.  XI.]  AT    WHAT    PLACE   DEMAND    SHOULD    BE   MADE.  423 

Thus,  where  tlie  maker  lias  a  well-known  and  long-established 
place  of  bushiess,  where  he  is  in  the  hahit  of  transacting-  his 
financial  concerns,  and  where  a  demand  might  lie  made,  present- 
ment of  a  note,  if  of  any  considerable  amount,  should,  it  is  be- 
lieved, be  made  here  rather  than  at  his  residence  ;  and  in  the 
absence  of  other  circumstances,  it  could  hardly  be  deemed  using 
due  diligence  to  demand  the  note  at  the  latter  place.  But  we 
know  of  no  authority  for  this.(rt) 

If  the  maker  has  a  place  of  residence,  but  none  for  the  trans- 
action of  business,  demand  should  be  made  at  the  former.  Thus 
where,  at  the  time  a  partnership  note  fell  due,  the  firm  had  been 
dissolved,  a  presentment  at  their  former  place  of  business  was 
held  insufficient ;  it  appearing  that  one  of  the  partners  was,  at 
the  time  of  the  maturity  of  the  note,  residing  in  the  same  town, 
and  tliat  his  house  might  have  been  found  by  the  holder  without 
much  difficulty. (o) 


either  would  be  sufficient.  But  in  a  note  the  learned  author  remarks  that  ho  has  found 
no  case  in  point,  but  cites  Chitty  on  Bills.  In  the  latter  work,  p.  250,  10th  Lend,  ed., 
it  is  stated  that  "presentment  should  be  to  the  drawee  of  the  bill  or  the  maker  of  the 
note  at  his  residence." 

(n)  This  refers  to  a  presentment  which  is  not  personal.  In  West  v.  Brown,  6  Ohio 
State,  542,  supra,  note  k,  the  maker  had  a  well-known  place  of  residence,  and  a  desk- 
room,  in  an  office  in  company  with  others,  where  he  transacted  business.  A  demand  at 
the  latter  place  while  the  maker  was  out  was  held  sufficient.  In  Lannsse  v.  Massicot, 
3  Mart.  La.  261,  the  maker,  four  months  before  the  maturity  of  the  note,  was  turned 
out  of  his  doniicil,  which  was  sold  on  execution.  He  went  with  his  family  to  his 
father-in-law's,  but  he  spent  two  months  at  his  brother-in-law's  to  attend  to  his  business, 
A  demand  at  the  latter  place  was  held  sufficient  to  charge  an  indorser.  "  This  demand 
must  either  be  made  of  the  maker  of  tiie  note  personally,  or  at  the  place  of  his  residence. 
But  in  this  particular  instance  it  appears  to  the  court  that  the  maker  had  no  fixed 
place  of  residence  anywhere  when  the  notes  became  due,  and  that  the  house  in  which 
he  spent  the  half  of  his  time  to  attend  to  his  business  in  the  city  was  more  to  be  consid- 
ered as  the  place  of  his  residence,  ^?•  such  purposes,  than  the  plantation  of  his  father-in- 
law  where  his  family  had  a  temporary  asylum." 

(o)  Granite  Bank  v.  Avers,  16  Pick.  392,  Shaw,  C.  J.  said:  "The  firm  of  Boor  & 
Co.  consisted  of  Poor  and  Breeden.  They  had  failed  and  given  up  their  place  of  busi- 
ness, and  the  same  place  had  been  let  to  strangers,  between  whom  and  Poor  &  Co.  there 
was  no  ])rivity,  and  no  inquiry  was  made  except  at  that  place,  and  there  the  notary  was 
informed  tliat  Poor  &  Co.  had  failed  and  gone  out  of  town.  But  the  information  was 
not  correct.  By  referring  to  the  name  of  Samuel  Poor  &  Co.  in  the  directory,  it  would 
have  t)een  found  that  Breeden  was  the  partner  indicated  by  the  word  Co.,  and  by  ref- 
erence to  the  name  of  Breeden  it  would  have  been  found  that  he  had  a  domicil  in 
town ;  and  it  is  now  found  that  he  was,  in  fact,  residing  in  town.  It  is  no  excuse  for 
want  of  such  Di^fsentmcnt  and  demand  that  the  promisors  had  failed,  as  the  plaintiffs 
cannot  recover  without  proof  of  demand  and  notice,  or  some  fact  which  will  excuse 


42-4  NOTES   AXD   BILLS.  [CH.  XL 

With  regard  to  the  conduct  necessary  to  be  pursued  by  the 
holder  where  the  maker's  house  or  pUice  of  business  is  closed,  or 
where  he  has  removed,  absconded,  or  has  died,  or  has  no  place 
of  business  or  residence,  reference  may  be  had  to  a  subsequent  sec- 
tion on  excuses  for  non-demand,  where  this  subject  is  treated. (/;) 
And  it  will  be  sufficient  here  to  remark,  that  in  such  cases,  where 
any  demand  at  all  is  necessary,  the  maker's  last  usual  plac^ 
of  abode  or  business  is  the  place  at  which  presentment  is  to  be 
made. 

Where  a  note  is  payable  generally,  the  parties  may  agree  upon 
the  place  where  it  shall  be  presented,  and  parol  evidence  is  ad- 
missible to  prove  such  agreement ;  (q)  and  where  a  maker  by  his 

the  want  of  a  demand ;  and  as  the  proof  fails  of  showing  any  demand,  or  any  legal 
excuse  for  the  want  of  it,  the  plaintiffs  are  not  entitled  to  recover."  In  Packard  v.  Lyon, 
5  Ducr,  82,  a  note  had  been  deposited  in  a  bank  for  collection  ;  demand  was  made  there, 
with  inquiry  as  to  the  residence  of  the  maker.  She  was  a  married  woman.  Her  name 
was  not  to  be  found  in  the  director}-.  It  appeared  that  she  was,  at  the  time,  keeping  a 
boarding-house  in  the  chy.     Held  insufficient,  and  the  indorser  was  discharged. 

(p)  Infra,  chapter  on  Excuses. 

(q)  Pearson  v.  Bank  of  the  Metropolis,  1  Pet.  89.  Maisliull,  C.  J.  said  :  "  But  this 
is  not  an  attempt  to  vary  a  written  instrument.  The  place  of  demand  is  not  expressed 
on  the  face  of  the  note,  and  the  necessity  of  a  demand  on  the  person,  when  the  parties 
are  silent,  is  an  inference  of  law  which  is  drawn  only  when  they  are  silent.  A  parol 
agreement  puts  an  end  to  this  inference,  and  dispenses  with  a  personal  demand.  The 
parties  consent  to  a  demand  at  a  stipulated  place,  instead  of  a  demand  on  the  per.son  of 
the  maker;  and  this  does  not  alter  the  instrument  so  far  as  it  goes,  but  su])plies  extrin- 
sic circumstances,  which  the  parties  are  at  liberty  to  supply The  indorser  under- 
takes conditionally  to  pay  if  the  maker  docs  not,  and  this  imposes  on  the  holder  the 
necessity  of  taking  the  proper  steps  to  obtain  payment  from  the  maker.  This  contract 
is  not  written,  but  i-;  implied.  It  is,  that  due  diligence  to  obtain  payment  from  the  maker 
shall  be  used.  When  the  parties  agree  what  this  due  diligence  shall  be,  they  do  not 
alter  the  written  contract,  but  agree  upon  an  extrinsic  circumstance,  and  substitute  that 
agreement  for  an  act  which  the  law  prescribes  only  where  they  are  silent."  See  Thonip- 
son  r.  Ketcham,  4  Johns.  285.  But  Thompson,  C.  J.,  in  Anderson  c.  Drake,  14  id.  114, 
referring  to  Thompson  v.  Ketcham,  said :  "  The  note  was  dated  at  Montego  Bay,  yet 
it  was  not  deemed  payable  there  ;  otherwise,  parol  evidence  would  have  been  inadmis- 
sible to  prove  it  was  payable  at  New  York.  Such  evidence  would  have  been  re- 
pugnant to  t!ie  written  note,  if  the  inference  of  law  was  that  it  was  payable  at  Mon- 
tego Bay"  So  in  Pierce  v.  Whitney,  29  Maine,  188,  Shcplci/,  J.  said:  "The  first 
cause  of  complaint  presented  by  the  bill  of  exceptions  is,  that  the  counsel  for  the  plain- 
tiff was  not  jK'rmitted  to  make  an  argument  to  the  jury  to  show  that  the  note,  by  tho 
iind(!rstanding  and  agreement  of  the  |)arties,  or  at  least  on  the  part  of  tlie  maker,  was 
to  be  paid  in  Boston.  In  doing  so  the  presiding  judge  acted  corrci'tly.  It  had  already 
been  decided  that  the  note  was  not  made  payable  in  the  city  of  Boston,  because  it  ap- 
peared to  have  been  made  and  dated  there.  Parol  evidence  cannot  be  received,  or  have 
the  effect  to  show,  that  n  note  not  made  payable  at  any  particular  ]tlace  was,  in  fact, 
agreed  to  be  payable  at  a  jjarticidar  place." 


CH.  XI.]  AT   WHAT   PLACE   DEMAND    SHOULD   BE   MADE.  425 

directions  or  acts  has  induced  the  holder  to  make  the  present-' 
ment  at  any  place  in  good  faith,  he  would  be  estopped  from 
objecting  to  the  demand  on  the  ground  that  the  place  was  an 
improper  one.(r)  A  presentment  at  the  place  thus  appointed  is 
also  sufficient  to  charge  an  indorscr.(5)  The  law  with  reference 
to  altering  a  note  or  bill  by  the  addition  of  a  place  of  payment, 
either  in  the  body  or  by  way  of  memorandum,  will  be  consif* 
ered  hereafter. 

We  have  already  seen  the  conflict  which  has  existed  in  the 
English  cases  with  reference  to  acceptance  and  notes  payable 
at  a  specified  place,  and  that  the  statute  1  <fe  2  Geo.  IV.  c.  78, 
was  passed  to  obviate  the  difficulty. (/)  We  will  now  consider 
the  law  of  that  country  with  reference  to  the  liability  of  the  ac- 
ceptor. 

By  the  terms  of  the  statute,  an  averment  and  proof  of  demand 
is  necessary  when  the  bill  is  accepted  payable  at  a  particular 
place  "  only,  and  not  otherwise  or  elsewhere."  It  is  not  neces- 
sary, however,  to  use  all  these  words,  "  and  not  elsewhere  "  hav- 
ing been  held  to  make  an  acceptance  special  and  conditional ;  (u) 
that  is,  to  require  demand  at  that  place.  Tlie  same  rules  would 
doul>tless  apply  where  the  bill  was  drawn  payable  at  a  specified 
place  only,  and  not  elsewhere,  and  accepted  generally. (f) 

An  averment  and  proof  of  demand  at  the  place  is  not  neces- 
sary where  a  bill  is  accepted  payable  at  a  particular  place  with- 
out the  exclusive  words, (ly)  nor  where  a  bill  is  drawn  payable 
under  like  conditions,  and  accepted  generally. (.r)  Tiie  acceptor 
of  a  bill,  accepted  payable  at  a  specified  place,  as,  for  instance,  at 
a  banker's,  without  the  words  "  only,  and  not  elsewhere,"  will 


(r)   Sussex  Bank  v.  Baldwin,  2  Harrison,  487,  by  Dayton,  J. 

(s)  Sussex  Bank  v.  Baldwin,  2  Harrison,  487  ;  State  Bank  v.  Hard,  12  Mass.  172. 

(t)  Sdpra,  p.  308,  notes. 

(«)  Higgins  V.  Nichols,  7  Dowl.  551. 

(v)  Infra,  note  w. 

(iv)  In  Ilalstcad  r.  Skelton,  5  Q.  B.  86,  2  Dowl.  n.  s.  69,  the  declaration  stated 
that  the  defendant  accepted  the  bill  '•  payable  at  A.  &  Co.'s,"  and  that  he  promised  to 
pay  it  "  according  to  the  tenor  and  effect  thereof."  A  demurrer,  that  the  bill  was  not 
allc'^cd  to  have  been  presented  at  A.  &  Co.'s  for  payment,  was  overruled  as  frivolous. 
It  will  not  be  a  variance  to  declare  upon  such  a  bill  as  payable  at  the  place  mentioned. 
Blake  V.  Beaumont,  4  Man.  &  G.  7,  4  Scott,  N.  R.  617,  1  Dowl.  n.  s.  697. 

(x)  Selby  V.  Eden,  3  Bing.  61 1,  11  J.  B.  Moore,  511  ;  Fayle  v.  Bird,  6  B.  &  C.  531, 
•2  Car    t  V.  303,  9  Dow.  &.  H.  639. 
3G* 


426  NOTES   AND   BILLS.  [CH.  XI. 

still  remain  liable  without  any  presentment  at  the  place,  though 
he  had  funds  with  the  banker  sufficient  to  meet  the  acceptance, 
and  by  the  failure  of  the  latter  had  lost  the  money,  (y) 

The  liability  of  the  drawer  and  indorser  of  a  bill  has  not  been 
altered  by  the  statute. (z)  Therefore,  if  the  bill  is  drawn  payable 
at  a  specified  place,  and  accepted  so  payable,  it  is  necessary  both 
to  aver  and  prove  a  presentment  there,  to  charge  tliem.(«)  But 
inasmuch  as,  in  an  action  against  them,  if  the  bill  has  been  ac- 
cepted payable  at  a  certain  place,  without  being  drawn  in  that 
manner,  no  acceptance  at  all  need  be  stated, (6)  a  presentment  at 
the  place  need  not  be  averred, (c)  but  it  should  be  proved. (^/) 


iy)  Turner  v.  Hayden,  4  B.  &  C.  1,  6  Dow.  &  R.  5,  Ryan  &  M.  215;  Scbag  v. 
Abitbol,  4  Maule  &  S.  462. 

(s)  The  statute  "is  confined  in  its  operation  to  the  case  of  acceptors  alone."  Tindal, 
C.  J.,  Gibb  V.  Mather,  8  Bing.  214,  221. 

(a)  Chitty  on  Bills,  10th  Lond.  ed.,  375.  In  Boydell  v.  Harkness,  3  C.  B.  168,  where 
the  bill  was  drawn  payable  in  London,  Maule,  J.,  interrupting  counsel,  said :  '"  Tho 
necessity  of  a  distinct  allegation  of  presentment  in  London,  if  any  exists,  arises  here 
from  the  fact  of  there  being  a  direction  in  the  bill,  on  the  part  of  the  drawer,  to  pay  tho 
bill  there.  If  the  drawer  directs  the  drawee  to  pay  the  bill  at  a  particular  place,  the 
liability  of  the  drawer  and  iudorsers  arises  only  on  the  drawee's  failure  to  pay  upon  tho 
bill  being  presented  to  him  at  the  place  indicated."  The  case  itself  decides  that,  since 
the  venue  was  laid  in  London,  a  general  allegation  of  presentment  was  .sufficient,  under 
the  rule  of  Hilary  T.  4  Wm.  IV.  r.  8.  In  Lyon  v.  Holt,  5  M.  &  W.  250,  the  head 
note  reads  :  "  Where  a  bill  is  drawn  payable  to  the  order  of  the  drawer  at  a  particular 
place,  it  seems  that  a  declaration  against  the  drawer  or  indorser,  alleging  a  presentment 
generally,  is  sufficient  after  verdict."  In  Byles  on  Bills,  168,  note  x,  this  is  doubted,  and 
dicla  in  Boydell  v.  Harkness,  3  C.  B.  1G8,  would  also  seem  somewhat  inconsistcn'^ 
with  it. 

(b)  Jones  V.  Morgan,  2  Camp.  474;  Tanner  v.  Bean,  4  B.  &  C.  312  ;  Bai/hi/,  B., 
Parks  V.  Edge,  1  Cromp.  &  M.  429.  And  if  alleged,  need  not  be  proved.  Tanner  v. 
Bean,  4  B.  &  C.  312  ;  contra,  Jones  v.  Morgan,  2  Camp.  474. 

(c)  Parks  v.  Edge,  I  Cromp.  &  M.  429,  3  Tyrw.  364,  an  action  against  an  indorser. 
The  bill  was  accepted  payable  at  a  certain  place.  Harris  v.  Packer,  3  Tyrw.  370,  note, 
infni,  note  d. 

{d)  Gibb  V.  Mather,  8  Bing.  214,  1  Moore  &  S.  387,  2  Cromp.  &  J.  254.  In  an  ac- 
tion by  an  indorser  against  the  drawer  of  a  bill,  accepted  payable  at  a  banker's,  tiio 
declaration  did  not  state  any  acceptance,  but  only  a  presentment  to  the  acceptor,  and 
his  refusal  to  pay.  The  proof  was  presentment  to  the  clerk  of  the  banker  at  the  clear- 
ing-house. Held,  that  the  presentment  was  sufficiently  proved.  Harris  r.  Packer,  3 
Tyrw.  370,  note.  A  presentment  of  a  bill  accepted  payable  at  a  banker's  to  his  clerk 
at  the  clearing-house  is  sufficient.  Reynolds  ?'.  Chettle,  2  Cam]).  596.  An  avcrnn  iit  that 
a  bill  acce[)lcd  pnyableata  banker's  was,  when  due,  presented  to  the  banker's  for  payment 
occordin}^  to  tlic  tenor  thereof,  and  that  tlie  banker,  an  acceptor,  refused  payment,  slial  1  bo 
supported  iifier  jud^iment  on  a  sham  ])lea.  Hulfam  v  Ellis,  3  Taunt.  415.  So  in  an  a<(ion 
against  an  indorser  of  a  i)ill,  an  averment  of  presentment  to  tho  banker  and  acccpt(>r  mc- 
cording  to  the  tenor  of  the  i)ill  was  held  sufficient  upon  special  demurrer,  assigiiiinj  for 


I 


CH.  XI.]  AT    WHAT    TLACE   DEMAND    SHOULD   BE   MADE.  42T 

The  liability  of  the  maker  and  indorscr  of  a  note  is  also  un- 
chauged  by  the  statute. (e)  The  rule  on  this  point  is,  that  where 
the  place  is  mentioned  in  the  body  of  the  note,  presentment  must 
both  be  averred  and  proved. (/)     But  if  the  place  is  stated  in  a 


cause  that  no  presentment  at  the  liouse  was  averred.  Bush  r>.  Kinnear,  6  Maule  &  S.  210. 
Where  a  bill  is  drawn,  payable  to  the  order  of  tlie  drawer  at  a  particular  place,  it  seems 
tliat  a  declaration  against  the  drawer  or  indorscr,  alleging  a  presentment,  generally  is 
sufficient  after  verdict.  Lyon  v.  Holt,  ,5  M.  &  W.  2.50.  An  allegation  of  presentment 
to  the  acceptor  is  proved  by  evidence  of  presentment  at  the  place  specified.  Hardy  v. 
Woodroofe,  2  Stark.  .319  ;  Giles  v.  Bourne,  6  Maule  &  S.  73,  2  Chitt.  300;  Wilmot 
(;.  Williams,  8  Scott,  N.  R.  713.  These  were  actions  against  the  drawers  of  bills  ac- 
cepted payable  at  a  banker's.  The  same  has  been  held  where  the  bill  was  directed  to 
the  drawee  at  a  certain  place,  and  accepted  by  him  generally.  Hine  v.  AUely,  4  B.  & 
Ad.  624.  But  in  such  case  no  allegation  of  presentment  to  the  acceptor  is  necessary. 
It  is  sufficient  if  there  is  an  averment  of  due  presentment  at  the  place.  De  Bengareche 
V.  Pillin,  3  Bing.  476,  11  J.  B.  Moore,  3.i0  ;  Hawkey  v.  Berwick,  4  Bing.  13.5,  12  J. 
B.  Moore,  478,  1  Younge  &  J.  376,  an  action  against  an  indorser,  where  it  was  also 
held  that  a  presentment  to  the  banker  was  not  necessary.  So  Philpott  v.  Bryant,  3  Car. 
&,  P.  244,  4  Bing.  717,  1  Moore  &  P.  754,  where  the  acceptor  had  died  before  the  ma- 
turity of  the  bill.  In  Benson  v.  White,  4  Dow,  334,  a  declaration  against  the  acceptor 
stated  that  payment  was  demanded  at  the  place  where  the  bill  was  made  payable,  with- 
out averring  a  refusal,  but  in  conclusion  stated  that  the  acceptor  had  not  paid  any  of  the 
sums  mentioned.  Judgment  was  entered  for  the  plaintiff,  and  on  a  writ  of  error,  brought 
for  want  of  an  averment  of  a  refusal,  the  judgment  was  affirmed  in  the  House  of 
Lords.    See  to  the  same  point  Butterworth  i'.  Despencer,  3  Maule  &  S.  1 50,  infra,  notey! 

(e)  Supra,  note  2:,  Parke,  B.,  Emblin  v.  Dartnell,  12  M.  &  W.  830;  Pollock,  C.  B., 
Spindler  v.  Grellett,  1  Exch.  384. 

(/)  Sandjjrson  v.  Bowes,  14  East,  500;  Dickinson  v.  Bowes,  16  id.  110;  Howe  v. 
Bowes,  id.  112,  5  Taunt.  30  ;  Emblin  v.  Dartnell,  12  M.  &  W.  830,  where  a  count  in  a 
declaration  was  held  bad  after  verdict,  for  omitting  to  allege  a  presentment  at  the  place ; 
Sands  v.  Clarke,  8  C.  B.  751  ;  Vander  Donckt  v.  Thellusson,  id.  812,  where  the  note 
was  made  in  Belgium,  in  the  following  form:  "A  trois  mois  de  date  je  payerai  a 
I'ordre  de  Mens.  F.  Vander  Donckt  la  somme  de  cinq  cent  francs,  valeur  recue  comp- 
tant.  Accepte',  bon  pour  cinc}  cent  francs,  payable  a  1*  fin  d'Octobre,  1843.  Chez 
M.  Legrelle.  C.  Thellusson."  Held,  that  this  was  to  be  considered  as  a  note  payable 
at  a  specified  place  ;  that  the  words  "  Chez  M.  Legrelle"  could  not  be  treated  as  a 
mere  memorandum,  because  they  were  separated  from  the  preceding  ones  by  a  full  pe- 
riod ;  and  that,  by  the  law  of  England,  there  must  be  a  presentment  at  the  place  named. 
The  defendant  objected  that  there  was  a  variance,  because  the  declaration  described  the 
note  generally,  and  that  there  was  no  averment  of  presentment  at  the  place.  The 
plaintiff  introduced  evidence  to  show  that,  by  the  law  of  Belgium,  a  presentment  at  the 
place  was  not  necessary.  The  judge  directed  the  jury  to  find  for  the  plaintiff,  if  they 
believed  the  law  of  Belgium  to  be  as  stated,  and  they  found  a  verdict  in  accordance 
with  it.  New  trial  denied.  Sjjindler  v.  Grellett,  1  Exch.  384.  In  this  case  the  dec- 
laration stated  that  the  defendant  made  his  promissory  note,  and  thereby  promised  to 
pay  to  the  plaintiff  "by  the  name  and  addition  of  Miss  Jessie  Hope,  at  10  Duncan 
Street,  Edinburgh,"  the  sum  of  £  200.  Averment,  that  the  plaintiff  was  always  ready 
and  willing  to  receive  the  said  sum,  according  to  the  tenor  and  effect  of  the  note,  of 
which  the  defendant  had  notice.     Breach,  non-payment.     Held,  on  general  demurrer, 


428  NOTES   AND    BILLS.  [CH.  XL 

memorandum  at  the  foot  of  the  note,  beneath  the  maker's  signa- 
ture, this  is  treated  as  only  directory,  and  not  a  substantive  part  of 
the  contract,  and  presentment  at  that  place  is  not  essential. (o-) 
The  law  with  reference  to  altering  a  note  or  bill  by  the  addition 
of  a  place  of  payment,  either  in  the  body  of  the  instrument  or 
by  way  of  memorandum,  will  be  found  on  a  subsequent  page. (A) 

that  this  was  a  note  payable  at  a  specified  place,  and  that  the  declaration  was  bad  for 
not  averring  a  presentment  at  that  place.  Rolfe,  B.  :  "  The  ground  of  demurrer  is, 
that  the  note  appears,  by  the  declaiation,  to  have  been  made  payable  at  a  particular 
place,  and  there  is  no  averment  of  presentment  at  that  place.  First,  it  is  said  that  such 
is  not  the  true  construction  of  the  note,  and  that  the  words  '  at  10  Duncan  Street ' 
are  merely  descriptive  of  the  person  of  the  payee.  But  it  is  impossible  to  torture  the 
words  to  any  such  meaning,  without  endeavoring  to  make  obscure  that  which  is  per- 
fectly plain.  Secondly,  it  is  said  that  it  is  not  necessary  to  aver  a  presentment,  be- 
cause the  note  is  not  negotiable;  and  Wain  v.  Bailey,  10  A.  &  E.  616,  is  relied  on 
(which  decided  that,  where  the  instrument  is  not  negotiable,  the  maker  is  bound  to 
pay  it  without  its  production,  and  therefore  it  is  no  answer  to  say  that  he  was  always 
ready  and  willing  to  pay  on  the  note  being  delivered  up).  But  in  that  case  the  party 
could  not  be  damnified  by  the  non-delivery  of  the  note  ;  for  the  instrument  not  being 
negotiable,  the  payee  alone  could  sue  upon  it.  No  such  distinction  exists  as  to  the 
necessity  for  presentment,  which  must  be  averred,  whether  the  note  be  negotiable  or 
not.  The  third  point  is,  that,  assuming  this  to  be  a  note  payable  at  a  particular  place, 
the  declaration  alleges  that  which  amounts  to  an  averment  of  presentment,  namely, 
that  the  party  was  always  ready  and  willing  to  receive  the  money  according  to  the 
tenor  and  effect  of  the  note.  It  seems  strange  to  endeavor  to  construe  words  which 
have  one  meaning  so  as  to  give  tliem  another  and  different  meaning.  Those  words 
cannot  ap])ly  to  a  })rescntmcnt,  and  never  were  intended  to  mean  it."  In  Bufterworth 
V.  Despencer,  3  Maule  &  S.  150,  the  declaration  averred  a  presentment  at  the  place 
specified,  and  that  the  defendant,  though  often  requested,  refused  to  pay.  A  demurrer, 
on  the  ground  that  there  was  no  averment  of  a  refusal  at  the  place,  was  overruled.  See 
Benson  v.  White,  4  Dow,  334,  supra,  note  d.  The  contrary  doctrine  was  held  in  tlie 
earlier  cases.     Wild  i>.  Rennards,  1  Camp.  42.5,  note;  NichoUs  v.  Bowes,  2  id.  498. 

{g)  Saunderson  v.  Judge,  2  H.  Bl.  509 ;  Richards  u.  Milsington,  Holt,  N  P.  364,  note ; 
Price  V.  Mitchell,  4  Camp.  200  ;  Exon  v  Russell,  4  Maulc  &  S.  505  ;  Williams  v.  War- 
ing, 10  B.  &  C.  2,  5  Man.  &  R.  9  ;  Masters  v.  Barctto,  8  C.  B.  433.  In  this  case  the 
maker  had  indorsed  the  note,  and  it  was  contended  that,  by  the  indorsement,  he  had 
incorporated  the  memorandum  into  the  body  of  the  note;  but  this  was  overruled. 
Another  distinction  attempted  to  be  taken  between  the  cases  cited  sujmi,  note /,  and 
the  present  was,  that  in  tlic  former  the  memorandum  began  with  the  word  "at,"  while 
in  the  latter  it  began  with  "  payable  at " ;  but  this  was  likewise  overruled.  In  Exon 
V.  Russell,  4  Maule  &  S.  505,  a  description  of  a  note  with  such  a  memorandum  at  the 
foot,  as  payable  at  a  specified  place,  was  held  to  bo  a  variance.  Contra,  Sproulc  v. 
Legp,  3  Stark.  156,  2  Dow.  &  R  15,  1  B.  &  C.  16.  But  if  the  declaration  merely  states 
that  the  note  was  made  payable  at  the  place,  without  saying  tliat  it  was  so  payable  ac- 
cording to  the  tenor  of  the  note,  this  does  not  amount  to  a  misdescription,  and  may  bo 
rejected  as  surplusage.  Hardy  v.  Woodroofe,  2  Stark.  319.  In  Trccothick  v.  Edwin, 
1  id.  468,  Lord  Klhnboroiifjh  hehi,  that  if  the  memorandum  was  printed,  it  must  be 
considered  as  a  part  of  the  note,  iiaving  been  made  at  the  same  time.     Scd  quare. 

(/i)   Infra,   Vol.  II.  pp    546,  547. 


CH.  XI.]  AT   WHAT    PLACE   DEMAND   SHOULD   BE   MADE.  429 

Tlic  law  Oil  this  subject  in  this  country  is,  as  lias  already  been 
remarked,  different  from  that  of  England.  In  all  the  States,  with 
the  exception  of  Louisiana  and  Indiana,  it  is  now  held  that  both 
maker  and  acceptor  are  liable,  without  a  presentment  at  tlie  place 
designated ;  (i)  but  the  fact  that  either  of  them  had  funds  there 
ready  to  be  paid  over  on  presentment  of  the  note  or  bill  might 
be  pleaded  in  reduction  of  damages  or  mitigation  of  costs  ;  (J) 
but  not  in  bar  of  the  action. (/c)  But  it  has  been  held  that  the 
declaration  should  state  the  place  at  which  the  note  is  payable, 
and  that  a  count,  which  described  the  note  as  payable  generally, 
was  fatally  defective  ;  in  other  words,  that  this  constituted  a  va- 
riance. (/) 

An  opinion  has  been  entertained  by  some  courts  that  an  aver- 
ment and  proof  of  demand  are  necessary  in  case  of  a  note  paya- 
ble on  demand,  or  without  any  time  being  specified  ;  the  rea- 
son being,  that  where  the  time  is  fixed,  the  defendant  may  easily 
aver  a  readiness  and  ability  to  pay  at  the  place  on  present- 
ment ;  but  where  the  time  depends  entirely  on  the  pleasure  of 
the  holder,  it  would  be  impossible  in  many  cases  to  set  up  this 
defence.  (»i) 

(e)  Supra,  p.  309,  note  a. 

(j)  Supra,  p.  309,  note  a. 

(k)  Supra,  p.  309,  note  a. 

(I)  Covington  v.  Comstock,  14  Pet.  43 ;  Sumner  v.  Ford,  3  Pike,  389. 

(m)  In  Wallace  v.  M'Connell,  13  Pet.  136,  146,  Thompson,  J.  attempted  to  reconcile 
the  cases  of  Wild  v.  Rennards,  1  Camp.  425,  note,  Nicholls  v.  Bowes,  2  id.  498,  and 
Sanderson  v.  Bowes,  14  East,  500,  on  the  ground  that  the  former  cases  wei-e  actions 
on  notes  payable  at  a  time  fixed,  and  the  latter  was  on  a  note  on  demand.  He  said : 
"Lord  Ellenborough,  in  the  course  of  the  argument  in  Saunderson  v.  Bowes,  in  answer 
to  some  cases  referred  to  by  counsel,  observed  :  '  Those  are  cases  where  money  is  to 
be  paid,  or  something  to  be  done  at  a  particular  time  as  well  as  place  ;  therefore  the 
party  defendant  may  readily  make  an  averment  that  he  was  ready  at  the  time  and  place 
to  pay,  and  that  the  other  party  was  not  ready  to  receive  it ;  but  here  the  time  of  pay- 
ment depends  entirely  on  the  pleasure  of  the  holder  of  the  note.'  It  is  true  Lord  Ellen- 
borough  did  not  seem  to  place  his  opinion,  on  the  ultimate  decision  of  the  cause,  upon  this 
ground  ;  .  .  .  .  and  there  is  certainly  a  manifest  distinction  between  a  promise  to  pay  on 

demand  at  a  given  place  and  a  promise  to  pay  at  a  fixed  time  at  such  place Where 

ihe  promise  is  to  pay  on  demand  at  a  particular  place,  there  is  no  cause  of  action  until 
the  demand  is  made,  and  the  maker  of  the  note  cannot  discharge  himself  by  an  offer 
of  payment,  the  note  not  being  due  until  demanded."  A  decision  to  the  like  effect 
was  made  in  Bank  of  North  Carolina  v.  Bank  of  Cape  Fear,  13  Ired.  75,  where  Ruffin, 
C.  J.  said,  that  there  was  no  doubt  that  the  law  was  as  held  in  that  case,  and  that  the 
cases  in  America  clearly  admit  the  distinction.  A  similar  opinion  was  expressed  by 
Stanard,  J.,  in  Armistead  v.  Armisteads,  10  Leigh,  512,  who  said  that "  it  would  prob- 
ably be  held  that  there  is  no  default  of  the  maker  or  acceptor  until  such  demand  be 


430  NOTES   AND   BILLS.  [CH.  XI. 

The  colli  rary  doctrine,  however,  has  been  held  by  several 
courts, (?i)  and  the  ground  on  which  their  decisions  are  based  is 
this  :  No  such  presentment  is  necessary  where  the  time  is  fixed, 
and  a  presentment  prior  to  the  suit  is  not  essential,  in  the  case 
of  notes  on  demand  without  any  place  being  designated ;  there- 
fore a  presentment  at  the  place  cannot  be  necessary  where  both 
these  circumstances  concur  in  the  same  note ;  and  the  fact  that 


made,  and  consequently  that  no  action  would  accrue  to  the  payee  until  such  demand 
should  be  made."  In  Caldwell  v.  Cassidy,  8  Cowcn,  271,  Savage,  C.  J.  said  :  "  In  the 
case  of  a  note  payable  on  demand  at  a  certain  place, — a  bank-note,  for  instance, — 
I  apprehend  a  demand  would  be  necessary,  and  must  be  averred."  But  the  same  judge 
held  the  contrary  in  Haxtun  v.  Bishop,  3  Wend.  1,  infra,  note  n.  In  Maine,  R.  S. 
18.57,  p.  273,  it  is  enacted  that,  "  in  an  action  on  a  promissory  note  payable  at  a  place 
certain,  either  on  demand  or  on  demand  at  or  after  a  time  specified  therein,  the  plain- 
tiff shall  not  recover,  unl'^ss  he  proves  a  demand  made  at  the  place  of  payment  prior 
to  the  commencement  of  the  suit."  A  note  payable  at  a  time  and  place  certain  is  not 
within  the  statute.     Stowe  v.  Colburn,  30  Maine,  32. 

(n)  Haxtun  v.  Bishop,  3  Wend.  13  ;  New  Hope  D.  B.  Co.  v.  Perry,  11  111.  467  ;  Mont- 
gomery V  Elliott,  6  Ala.  701  ;  Dougherty  v.  Western  Bank,  13  Ga.  287  ;  McKenney 
V.  Whipple,  21  Maine,  98,  where  Tenney,  J.  said  :  "  It  is  settled  so  far  beyond  dispute 
that  authorities  are  not  thought  necessaiy  to  be  cited,  that  a  note  payable  on  demand 
generally  is  payable  everywhere,  and  a  suit  can  be  maintained,  though  not  preceded  by 
a  demand.  A  previous  demand,  then,  in  this  State,  is  unnecessary  on  a  note  payable 
at  a  particular  place  on  a  day  certain ;  and  also  on  a  note  payable  on  demand  gen- 
erally. In  the  former,  proof  that  the  debtor  was  prepared  at  the  place  and  on  the  day 
when  [)ayment  was  to  be  made  to  discharge  the  note  if  presented,  and  bringing  the 
money  into  court,  would  be  a  bar  of  damages,  and  entitle  him  to  costs.  Why  should  a 
different  principle  be  made  to  apply  to  the  note  containing  in  itself  both  the  terms, 
which  may  be  disregarded  in  a  note  which  contains  one  or  the  other,  but  not  both  1  Is 
there  any  more  necessity  for  the  protection  of  the  debtor's  interests  and  rights,  that  a 
demand  should  be  made  when  both  exist  together  than  when  they  may  be  in  two  notes 
between  the  same  parties  1  Are  reasons  to  be  found  in  one  case  inapplicable  in  the 
other?  Tiie  authorities  which  have  been  cited  from  English  books  to  support  the 
views  taken  by  the  defendant's  counsel  establish  there  a  doctrine  which  is  not  recog- 
nized here.  Is  the  maker  of  a  note,  payable  at  his  own  residence  on  demand,  in  a 
situation  to  be  injured  by  being  called  upon  to  answer  to  an  action  coniinenced  upon 
it,  without  a  previous  demand,  more  than  ho  Avould  be  upon  one  payable  at  the  same 
place  on  a  day  certain  ?  In  the  latter  case  he  is,  to  be  sure,  only  to  provide  himself 
with  the  means  of  payment  on  the  day  upon  which  he  engaged  to  make  it;  and  by 
doing  so  he  is  secure  from  injury.  When,  for  instance,  he  engages  to  pay  on  demand 
at  liis  residence,  he  is  subjected  to  the  additional  risk  of  being  called  upon  when  he 
may  not  have  provided  for  the  exigency ;  to  be  certain  of  exemption  from  costs,  he 
must  be  constantly  in  funds  to  meet  the  note,  inasmuch  as  he  would  not  be  entitled  to 
notice  of  the  time  when  the  presentment  of  the  note  would  l)c  made  ;  and  immediately 
after  a  default  on  his  part  to  meet  the  demand  made  according  to  the  terms  of  his  en- 
gagement, he  would  i)c  liable.  He  could  not  insist  upon  a  day  or  an  hour  in  which 
lo  provide  the  means  of  discharge.  But  this  additional  risk  lie  has  voluntarily  taken 
upon  himself,  and  therefore  he  must  ask  no  indulgence  on  that  account.     If  the  ac- 


I 


CH.  XI.]  AT   WHAT    PLACE   DEMAND    SHOULD   BE   5L\DE.  431 

the  defence  is  more  difficult  in  the  one  case  than  in  the  other 
does  not  avail,  because  the  defendant  has  taken  upon  himself 
the  additional  risk,  and  the  hardship,  if  any,  is  one  of  his  own 
creation. 

It  seems  to  be  settled,  that,  in  order  to  charge  the  indorscr  of  a 
note,  a  demand  at  the  place  designated  is  necessary,  and  must  be 
averred  and  proved,  (o)     The  reason  given  is,  that  his  liability  is 


tion  is  brought  without  a  previous  demand  at  his  residence,  the  bringing  the  action 
woukl  bo  the  demand,  as  in  cases  when  the  note  is  payable  on  demand  generally ;  and 
proof  of  a  readiness  to  discharge  the  obligation  at  his  residence  on  the  day  of  the 
commencement  of  the  suit,  and  bringing  the  money  into  court,  would  be  a  bar  to  dam- 
ages, and  would  entitle  him  to  liis  costs  in  the  same  manner  as  on  a  note  payable  at  a 
certain  day  at  his  residence.  We  are  unable  to  see  wherein  he  would  not  be  equally 
protected  in  the  one  case  as  in  the  other,  excepting  so  far  only  as  his  own  contract  may 
require  him  to  be  constantly  ready  in  one,  and  only  on  a  particular  day  in  the  other. 
The  restriction  cannot  be  regarded  as  useless  in  one  more  than  on  the  other.  It  may 
be,  and  often  is,  a  great  benefit  to  the  maker  of  a  note  to  be  allowed  to  pay  it  at  a  place 
where  he  may  be  possessed  of  the  means,  and  if  he  be  thus  possessed  according  to  his 
engagement,  he  does  not  suffer.  And  it  is  not  seen  in  what  manner  he  would  be  preju- 
diced in  such  a  note  as  the  one  now  under  consideration  by  a  want  of  presentment, 
more  than  in  one  payable  on  a  da}*  certain.  On  the  hypothesis  that  a  demand  is  ne- 
cessary on  a  note  like  the  one  before  us,  the  demand  could  be  of  no  utility  to  the  debtor, 

if  unprovided  with  the  means  of  payment From  the  whole  examination  which  we 

have  been  able  to  make  of  the  authorities  bearing  upon  the  question,  and  the  consider- 
ation which  we  have  given  the  subject,  we  are  satisfied  that  a  decision  in  favor  of  the 
defendant  in  this  case  would  be  virtually  a  denial  of  the  soundness  of  the  reasons  which 
sustain  the  law  that  is  here  settled,  that  a  presentment  is  unnecessary  on  a  note  pay- 
able at  a  particular  time  and  place."  The  same  was  held  with  reference  to  a  note 
payalile  on  demand  after  a  fixed  time,  in  Gammon  v.  Everett,  25  Maine,  66.  But  the 
law  has  been  changed  in  Maine,  by  statute,  supra,  note  m.  In  Cook  v.  Martin,  5 
Smedes  &  M.  379,  the  distinction  was  adverted  to ;  but  it  was  held,  that,  whatever 
might  be  the  rule  with  reference  to  notes  on  demand,  no  demand  at  the  place  was  neces- 
sary to  charge  the  maker  of  a  note  payable  on  demand  five  months  after  date.  In 
Dougherty  v.  Western  Bank,  13  Ga.  287,  an  opinion  is  expressed  that  a  demand  is 
necessary  in  the  case  of  a  bank-bill  payable  on  demand  at  a  designated  place,  but  none 
can  be  required  on  a  note  payable  under  like  conditions.  The  reason  given  for  the 
distinction  is  public  policy.  The  distinction  is  expressly  denied  in  Bank  of  North 
Carolina  v.  Bank  of  Cape  Fear,  13  Ired.  75,  which  holds  that  a  demand  is  necessary 
in  both  cases  ;  and  Haxtun  v.  Bishop,  3  Wend.  1,  Montgomery  r.  Elliott,  6  Ala.  701, 
were  actions  on  bank-bills,  and  held  that  a  demand  was  not  essential,  putting  promis- 
sory notes  and  bank-bills  upon  the  same  footing. 

(o)  In  Bank  of  U.  S.  v.  Smith,  11  Wheat.  171,  it  was  held,  that,  in  an  action  against 
an  indorser,  on  a  note  payable  at  a  particular  bank,  the  bank  not  being  the  holder,  an 
averment  of  a  demand  at  that  bank  is  indispensable.  But  where  the  bank  is  the  holder, 
an  allegation  that  the  note  was  presented  to  the  maker  and  i)ayment  refused,  under 
which  competent  evidence  of  a  demand  was  introduced  at  the  trial  without  objection,  is 
so  far  sufficient  that  the  judgment  will  not  be  reversed.  Thompson,  J.,  after  intimating 
an  opinion  that  such  averment  would  not  have  been  necessary  if  the  defendant  had 


432  NOTES   AXD    BILLS.  [CH.  XL 

conditional,  while  tliat  of  the  maker  and  acceptor  is  absolute. 
But  when  a  note  is  payable  at  a  bank,  and  the  bank  itself  is  the 
holder,  it  has  been  held  that  an  averment  of  presentment  to  the 
maker  generally  was  sufficient.  (7?) 


been  the  maker,  said  :  "  But  when  recourse  is  had  to  the  indorser  of  a  promissoi-}'  note, 
as  in  the  present  case,  very  different  considerations  arise.  He  is  not  the  original  and 
real  debtor,  hut  only  surety.  His  undertaking  is  not  general,  like  that  of  the  maker, 
but  conditional  that  if,  upon  due  diligence  having  been  used  against  the  maker,  pay- 
ment is  not  received,  then  the  indorser  becomes  liable  to  pay.  This  due  diligence  is  a 
condition  precedent,  and  an  indispensable  part  of  the  plaintiff's  title  and  right  of  re- 
covery against  the  indorser.  And  when,  in  the  body  of  the  note,  a  place  of  payment  is 
designated,  the  indorser  has  a  right  to  presume  that  the  maker  has  provided  funds  at 
such  place  to  pay  the  note,  and  has  a  right  to  require  of  the  holder  to  apply  for  pay- 
ment at  such  place.  And  whenever  a  note  is  made  payable  at  a  bank,  and  the  bank 
itself  is  not  the  holder,  an  averment  and  proof  of  the  demand  at  the  place  appointed  in 
the  note  are  indispensable."  The  same  was  held  in  Bank  of  Wilmington  v.  Cooper,  1 
Harring.  Del.  10;  Watkins  v.  Crouch,  5  Leigh,  522;  Hartwell  v.  Candler,  5  Blackf. 
215,  but  this,  it  will  be  observed,  was  an  Indiana  case,  where  the  law  is  stated  to  be 
different  from  the  other  States ;  Smith  v.  M'Lean,  2  Taylor,  N.  Car.  72 ;  Nichols  v. 
Pool,  2  Jones,  N.  Car.  23.  In  North  Bank  v.  Abbot,  13  Pick.  465,  a  suit  against 
an  indorser,  Sliaw,  C.  J.  said  :  "  Where  a  note  is  made  payable  at  a  particular 
bank,  or  other  place  certain,  it  has  long  been  held,  and  is  now  well  settled,  not 
only  that  the  holder  is  not  bound  to  present  it  to  the  promisor  at  any  other  place, 
but  that  a  presentment  at  any  other  place  would  be  unavailing  ;  a  promisor  would  be 
under  no  obligation  to  pay  it  at  another  place,  and  of  course  a  refusal  to  pay  upon 
such  presentment  would  be  no  dishonor  upon  which  the  indorser  could  be  charged. 
Berkshire  Bank  r.  Jones,  6  Mass.  524;  Woodbridge  v.  Brigham,  12  id.  405,  corrected 
in  13  id.  556."  If  this  language  is  not  to  be  considered  as  referring  to  an  indoi-scr,  it 
is  incorrect,  so  far  as  it  relates  to  the  point  that  a  presentment  at  any  other  place  is  un- 
availing. The  statement  appears  to  be  too  broad.  In  Shaw  v.  Reed,  12  Pick.  132,  the 
court  said  that  the  excuse  for  non-presentment  to  the  maker,  that  he  iiad  absconded, 
did  not  apply  when  the  note  is  payable  at  a  time  and  place  certain  ;  "  that  an  actual  or 
virtual  demand  must  be  made  at  that  place,  and  notice  of  non-payment  there  must 
be  given  to  the  indorser  in  order  to  charge  him  ;  and  it  was  resolved,  that,  as  the 
note  m  suit  was  not  at  the  bank  on  the  day  on  which  it  became  due,  no  legal 
demand  was  made,  and  therefore  the  defendant  was  discharged  from  liability  as 
indorser"  See  Carley  v.  Vance,  17  Mass.  389,  Wilde,  J.;  Woodbridge  v.  Brigham, 
13  id.  556,  Parker,  C.  J.  In  Seneca  Co.  Bank  v.  Neass,  5  Denio,  329,  McKisxocl;  J. 
said  :  "  There  was,  it  is  true,  a  defect  in  the  certificate,  as  it  did  not  slate  where  the 
demand  of  the  note  was  made ;  but  this  difficulty  was  obviated  by  the  oral  testimony 
of  the  notary,  which  showed  that  it  was  at  the  banking-house  of  tiic  plaintiffs,  the 
place  of  payment."  See  Woodworth  v.  Bank  of  America,  19  Johns.  391,  405,  Kent, 
Ch. ;  Bacon  v.  Dyer,  3  Fairf.  19,  Weston,  C.  J.;  Hart  v.  Green,  8  Vt.  191,  Phrlps,  J.; 
Allen  V.  Smith,  4  Ilarring.  Del  234,  Booth,  C.  J.  See  also  the  cases  of  Sullivan  v. 
Mitchell,  1  N.  Car.  Law  Kep.  482,  Taylor,  C.  J. ;  Irvine  v.  Withers,  1  Stew.  Ala.  234, 
SaffoUl,  J. ;  Roberts  v.  Ma.son,  1  Ala.  375  ;  Montgomery  v.  Elliott,  6  id.  701,  Ormond, 
J.  ;  Glasgow  v.  Prattc,  8  Misso.  336. 

(/))  Bank  of  South  Carolina  v.  Flagg,  1  Hill,  S.  Car.  177 ;  Bank  of  U.  S.  i-.  Smith, 
II  Wheat.  171,  supra,  note  o. 


CH.  XI.]  AT    WHAT    PLACE    l)l•;:^rAND   SHOULD   BE    MADE.  433 

It  has  been  lield  tliat  a  presentment  at  a  different  plaee  from 
the  one  at  which  the  note  was  payaljle,  and  an  absolute  re- 
fusal by  the  maker  to  pay,  and  a  statement  that  any  further 
presentment  at  the  place  specified  would  be  useless,  because 
tlicre  were  no  funds  there,  was  not  sufficient  to  charge  an  in- 
dorser.(7) 

So  where  a  note  payable  at  one  liank  was,  with  the  consent  of 
an  indorser,  negotiated  at  another,  a  demand  at  the  latter  bank 
was  held  insufficient  to  charge  the  indorser,  although  it  was 
proved  that  the  maker  had  no  funds  at  the  bank  where  the  note 
was  payable. (r) 

We  are  not  aware  that  the  necessity  of  such  averment  and 
proof  to  charge  the  drawer  and  indorser  of  a  bill  has  been  ad- 
judged except  in  a  very  few  of  the  reported  cases  in  this  coun- 
try ;  but  as  to  the  proof,  it  must  be  as  essential  where  the  drawer 
or  indorser  of  a  bill  is  sought  to  be  charged,  as  where  the  question 
is  concerning  the  liability  of  an  indorser  of  a  note.(s)     Whether 


(q)  Smith  V.  M'Lean,  2  Taylor,  N.  Car.  72. 

(r)   Watkins  v.  Crouch,  5  Leigh,  522. 

(s)  Tuckerinan  v.  Hartwell,  3  Greenl.  147,  is  the  only  case  which  has  been  found 
where  the  liability  of  a  drawer,  in  this  respect,  has  been  distinctly  discussed.  The  bill 
was  accepted  to  pay  in  Boston,  and  the  words,  "  A.  F.  Howe  &  Co."  were  written  at 
the  lower  left-hand  corner,  but  were  not  plainly  legible.  The  plaintiff  insisted  that 
these  words  formed  no  part  of  the  acceptance ;  and  as  the  bill  was  accepted  payable  in 
Boston,  that  they  were  only  bound  to  prove  that  it  was  in  Boston  at  maturity,  and  that 
due  notice  was  given  to  the  drawer  of  its  dishonor.  But  the  judge,  at  Nisi  Prius,  in- 
structed the  jury,  if  they  should  find  that  the  words  "  A.  F.  Howe  &  Co."  were  placed 
upon  the  bill  by  the  acceptor  at  the  time  of  the  acceptance,  and  intended  to  designate 
the  place  at  which  the  bill  should  be  presented  for  payment,  and  that  the  plaintiffs,  the 
indorsers,  knew  that  it  was  so  intended,  and  where  the  place  was,  that  it  was  incumbent 
on  the  plaintiffs  to  prove  a  demand  at  the  place.  The  jury  found  for  the  defendant, 
and  a  new  trial  was  refused.  It  may  be  observed,  however,  with  reference  to  this  case, 
that  Mellen,  C.  J.,  after  adverting  to  the  difference  between  the  liability  of  an  acceptor 
and  that  of  a  drawer  or  indorser,  said  :  "  The  line  of  distinction,  however,  is  not  drawn 
with  clearness,  and  therefore  we  have  not  founded  our  opinion  upon  it,  though  there 
seem  to  be  good  reasons  for  the  distinction."  In  Story  on  Bills,  §  355,  it  is  laid  down, 
that  "  if  the  bill  be  made  payable  at  a  banker's,  or  other  particular  place,  and  accepted 
accordingly,  it  should  be  presented  for  payment  at  that  place  at  its  maturity,  otherwise 
the  drawer  and  prior  indorsers  will  be  discharged."  In  Story  on  Prom.  Notes,  §  230, 
it  is  said  that  the  English  and  American  authorities  "  are  entirely  in  coincidence  on  the 
point  that  it  is  indispensable,  in  order  to  charge  the  indorser  or  the  drawer,  that  a  pre- 
sentment for  payment  should  be  made  not  only  at  the  place,  but  also  on  the  very  day 
of  the  maturity  of  the  note  or  bill,  otherwise  the  indorser  or  drawer  will  be  absolutely 
discharged."  In  Edwards  on  Bills,  496,  it  is  stated,  that,  "  when  a  bill  or  note  is 
Vol.  I.— 2  C 


434  NOTES  AXD    BILLS.  [CH.  XL 

the  distinction  mentioned  above,  which  the  English  courts  seem 
to  have  taken  between  the  necessity  of  an  averment  where  the 
bill  is  drawn  payable  at  a  place  certain,  and  its  non-requirement 
where  the  acceptance  alone  is  so  payable,  would  be  followed, 
may  be  doubted. 

There  can  be  no  such  distinction  in  this  country  as  that  which 
exists  in  England  witli  reference  to  the  liability  of  the  maker, 
where  the  place  of  payment  is  mentioned  in  the  body  of  the  note, 
and  where  it  simply  constitutes  a  memorandum  at  the  foot ;  be- 
cause if  the  maker  is  liable  without  a  presentment  in  the  former 
case,  he  must  be  in  the  latter.  This  question  might  arise,  how- 
ever, with  respect  to  the  liability  of  an  indorser  of  a  note,  or  of 
a  bill,  with  such  a  memorandum  at  the  foot  of  the  acceptance, 
or  possibly  of  an  acceptor  who  has  accepted  generally  the  bill 
drawn  with  the  memorandum  beneath  the  signature  of  the 
drawer.  But  it  may  well  be  doubted  whether,  independently  of 
the  question  of  alteration,  the  distinction  adverted  to  is  not  more 
nice  than  sound ;  and  it  has  a  tendency  to  create  confusion  and 
uncertainty  on  this  subject,  already  overburdened  with  niceties 
and  refinements.  (^)  Where  there  is  any  difference  between  the 
law  of  the  place  where  a  note  or  bill  is  made,  and  that  which 
exists  where  payment  is  to  be  demanded,  the  law  of  the  latter, 
which  must  be  pleaded  and  proved  like  any  other  fact,  will 
govern.  (?/) 

Wliatcver  difference  there  may  be  in  the  cases,  as  to  the 
necessily  of  a  demand  at  the  place  specified,  it  is  perfectly 
clear  that,  so  far  as  place  is  concerned,  a  presentment  there 
by  the  holder  is  always  sufficient.     And  this  is  true,  whether 


drawn  payable  at  a  place  named,  it  is  essential  to  show,  in  an  action  a}j;ainst  tlie  drawer 
or  indorser,  a  presentment  at  tlie  place  a])pointed."  None  of  tlie  American  cases  cited 
by  the  learned  author,  however,  on  this  point,  arc  direct  decisions  resj)ecting  drawers 
or  indorsers  of  bills. 

(/)  In  Tuckerman  v.  Hartweli,  .3  Grcenl.  147,  the  distinction  in  denied.  The  facts 
in  this  case  will  be  found  supra,  note  s.  But  in  Pierce  r.  Whitney,  29  Maine,  188,  195, 
Shepleij,  J.  said  :  "  The  place  of  payment  must  bo  stated  in  the  body  of  the  note,  to 
make  it  j)ayablc  at  that  place."  "  A  written  memorandum  of  such  a  place  at  the  foot, 
or  on  the  margin  of  the  note,  has  been  adjudged  to  be  insuflicient."  These  arc  mere 
dirja,  however.  The  point  was  touched  upon  in  Fletcher  v.  Blodgctt,  16  Vt.  26,  whero 
it  was  said  to  bo  an  open  question.  The  subject  of  the  effect  of  a  memorandum,  in 
general,  is  treated  elsewhere. 

(»)  I'ryor  v.  Wright,  14  Ark.  189. 


CH.  XI.]  AT   WHAT   PLACE   DEMAND    SHOULD    BE   MADE.  435 

the   liability  of  the   indorser,(i<;)    maker5(.r)    drawer,(y)    or   ac- 
ceptor (0)   is  concerned. 

Nor  in  such  case  is  it  necessary  for  the  maker  himself,  or  his 
agent,  to  make  any  formal  demand,  for  it  is  sufficient  if  the  note 
is  at  the  place  on  the  day  of  maturity,  ready  to  be  delivered  up 
to  any  party  who  may  be  entitled  to  it  on  payment  of  the  amount 
due ;  and  if,  at  the  close  of  business  hours,  the  note  or  bill  is  still 
unpaid,  these  facts  alone  constitute  a  dishonor,  and  the  requisite 


{w)  In  Saunderson  t;.  Judge,  2  H.  Bl.  509,  the  place  of  payment  was  mentioned 
in  a  memorandum,  and  yet  a  demand  there  was  held  sufficient.  In  Bank  of  U.  S. 
V.  Carneal,  2  Pet.  543,  Story,  J.  said  :  "  Where  a  note  is  payable  at  a  bank,  it  is  not 
necessary  to  make  any  personal  demand  on  the  maker  elsewhere.  It  is  his  duty  to  be 
at  the  bank  within  the  usual  hours  of  business  to  pay  the  same,  and  if  he  omits  so  to 
do,  and  a  demand  is  there  made  of  payment  by  the  holder,  within  those  hours,  and 
it  is  refused  or  neglected  to  be  made,  the  holder  is  entitled  to  maintain  his  action  for 
such  dishonor."     Berkshire  Bank  v.  Jones,  6  Mass.  524  ;  Woodbridge  v.  Brigham, 

13  id.  556,  12  id.  405  ;  Bank  of  Utica  v.  Smith,  18  Johns.  230 ;  Anderson  ».  Drake, 

14  id.  114,  117,  by  Thompson,  C.  J.,  who  said:  "The  settled  law  now  is,  that  a  de- 
mand of  payment  at  the  place  where  the  note  is  made  payable  is  enough  to  charge 
the  indorser.  Gale  v.  Kemper,  10  La.  205  ;  Commercial,  &c.  Bank  v.  Hanier,  7  How, 
Miss.  448 ;  Cohea  v.  Hunt,  2  Smedes  &  M.  227  ;  Harrison  v.  Crowder,  6  id.  464 ;  Good- 
loe  V  Godley,  13  id.  233  ;  Rabm  v.  Philadelphia  Bank,  1  Rawle,  335  ;  Jenks  v.  Doyles- 
town  Bank,  4  Watts  &  S.  505,  where  it  was  held,  that  a  statement  in  the  protest  of  a 
demand  at  the  bank  was,  prima  facie,  sufficient ;  also,  that  it  need  not  be  shown  that  the 
cashier  was  at  the  bank  during  the  whole  of  business  hours,  because  the  presumption  is 
that  he  performs  his  duty.  See  Bank  of  South  Carolina  v.  Flagg,  1  Hill,  S.  Car.  177. 
In  De  Wolf  v.  Murray,  2  Sandf  166,  the  holder  went  to  demand  payment  of  the  ac- 
ceptor of  a  bill  directed  to  the  latter,  "at  the  office  of  H.  0.  Collard,  No.  18  Chapel 
Walks,  Liverpool,"  and  found  the  office  shut,  and  no  one  there  to  answer.  Held  a  suf- 
ficient presentment  to  charge  an  indorser.  See  also  in/ia,  note  y.  Bank  of  Syracuse 
V.  HoUister,  17  N.  Y.  46,  where  the  teller,  who  was  also  a  notary,  took  the  note  to  the 
bank  at  about  6  P.  M.,  and  finding  it  shut,  as  notary,  demanded  payment  of  him- 
self, as  teller.     He  knew  that  there  were  no  funds  in  the  bank.     Held  sufficient. 

(x)  Lyon  r.  Williamson,  27  Maine,  149,  where  the  maker  was  ready  at  the  time  and 
place,  and  the  holder  was  not  there  to  receive  the  money,  but  subsequently  made  a 
demand  at  the  place,  and  was  not  able  to  obtain  payment.  Held  sufficient.  Stedmaa 
V.  Gooch,  1  Esp.  3. 

(//)  Supra,  notes.  In  Evans  v.  St.  John,  9  Port.  Ala.  186,  the  drawer  of  a  bill  pay- 
able at  a  bank,  in  a  suit  against  him,  offered  evidence  to  prove  that  he  had  deposited  in 
the  hands  of  the  acceptor,  at  the  maturity  of  the  bill,  funds  more  than  sufficient  to 
meet  it.  Held,  that,  inasmuch  as  a  proper  demand  had  been  made  at  the  bank,  the  evi- 
/lence  was  inadmissible,  because  immaterial.  In  Hine  v.  Allely,  4  B.  &  Ad.  624,  the 
acceptor  accepted  generally  a  bill  directed  to  him  at  No.  6  Budge  Row,  Watling  St. 
Held,  that  an  averment  of  presentment  to  the  acceptor  was  supported  by  proof  that  the 
holder  went  to  the  place  mentioned  to  present  the  bill,  and  found  the  house  shut  up, 
and  no  one  there.  The  subject  how  far  this  fact  constitutes  an  excuse  will  be  treated 
infra. 

{z)  Foden  v.  Sharp,  4  Johns.  183 ;  McClane  v.  Fitch,  4  B.  Mon.  599. 


4"3(j  NOTES   AND   BILLS.  [CH.  XL 

notice  may  be  given  forthwith  to  the  proper  parties. (a)  It  is 
usual,  however,  in  such  instances,  to  have  a  formal  presentment 
and  refusal  made.     We  do  not  regard  this  as  necessary.  (6) 

In  some  cases  an  examination  of  the  accounts  of  the  maker 
has  been  made,  in  order  to  ascertain  whether  the  bank  or  banker 
at  whose  place  of  business  a  note  has  been  made  payable  has 
any  funds  with  which  to  pay  the  note.(c)  But  this  is  clearly  un- 
necessary, where  it  is  proved  by  any  competent  evidence  that  no 
funds  were  there  to  meet  the  note,  and  that  no  one  came  to  pay 
it.{d)  And  unless  the  bank  or  banker  is  the  owner  of  the  note, 
and  not  merely  the  holder  for  collection,  it  may  well  be  doubted 
whether  the  mere  fact  that  the  bank  or  banker  had  funds  of  the 
maker   in  its  possession  would  constitute   any  defence  for  the 

(a)  Saunderson  ».  Judge,  2  H.  Bl.  509 ;  Fullerton  v.  Bank  of  U.  S.,  1  Pet.  604  ; 
Bank  of  U.  S.  v.  Carneal,  2  id.  543  ;  Berkshire  Bank  v.  Jones,  6  Mass.  524 ;  Folger 
V.  Chase,  18  Pick.  63  ;  Nichols  v.  Goldsmith,  7  Wend.  160 ;  Ogden  ».  Dobbin,  2  Hall, 
112  ;  Woodin  v.  Foster,  16  Barb.  146 ;  Gillett  v.  Averill,  5  Denio,  85 ;  Allen  v.  Miles,  4 
Barring.  Del.  234;  Graham  v.  Sangston,  1  Md.  59 ;  Hunter  v.  Van  Bomhorst,  id.  504  ; 
Goodloe  V.  Godley,  13  Smedes  &  M.  233.  These  were  cases  against  an  indorser 
Maurin  v.  Perot,  16  La.  276,  an  action  against  a  maker;  State  Bank  v.  Napier,  6 
Humph.  270,  an  action  against  a  bank  for  neglect  of  duty,  by  which  it  was  claimed 
that  the  indorsers  of  a  note  deposited  there  were  discharged. 

(b)  In  Ogden  v.  Dobbin,  2  Hall,  1 12,  Oakleij,  J.  said  :  "  There  was  no  necessity  for 
the  cashier  to  make  any  other  demand.  His  subsequent  delivery  of  the  note  to  a 
notary,  and  his  personal  demand  on  the  makers,  was  probably  by  way  of  greater 
caution,  and  was  clearly  unnecessary."  So  in  Gillett  v.  Averill,  5  Denio,  85,  where 
the  only  evidence  of  presentment  was,  that  the  teller,  on  the  day  of  maturity,  drew  the 
note  from  the  package  where  it  was  kept,  and,  knowing  that  the  maker  had  no  funda 
in  the  bank,  he  gave  notice  to  the  indorser,  without  any  formal  demand  of  payment,  or 
any  actual  examination  of  the  maker's  account.  The  defendant  moved  for  a  nonsuit, 
which  was  denied.  Whiltksei/,  J.  said  :  "  The  presentment  for  payment  was  sufficient. 
It  is  understood  to  be  the  custom  of  banks  holding  promissory  notes  payable  at  their 
own  counter  to  wait,  on  the  day  of  the  maturity  of  the  note,  until  the  close  of  business 
hours,  and  then,  if  the  maker  has  no  funds,  to  give  notice  of  non-payment,  without  mak- 
ing any  other  demand  of  payment.  This  custom  is  sanctioned  by  judicial  decisions. 
It  may  be  usual  for  the  teller,  or  otlier  officer,  to  inquire  of  the  book-keeper  if  tiie 
maker  has  any  funds  ;  but  in  this  case  such  inquiry  was  unnecessary,  as  the  teller 
swore  that  he  knew  there  were  no  funds  in  the  bank  to  pay  the  note.  No  formal  de- 
mand, or  unmeaning  proclamation,  at  the  close  of  banking  liours  for  the  day  was 
necessary,  or  is  ever  necessary,  in  such  cases."  Fullerton  v.  Bank  of  U.  S.,  1  Pet.  604, 
infra,  note/;  Shaw,  C.  J.,  Gilbert  v.  Dennis,  3  Met.  495,  497. 

(r.)  Saunderson  v.  Judge,  2  H.  Bl.  509;  Maurin  v.  Perot,  16  La.  276;  Bank  of 
South  Carolina  v.  Fiagg,  1  Hill,  S.  Car.  177. 

(d)  Gillett  V.  Averill,  5  Denio,  85,  supra,  note  b ;  State  Bank  v.  Napier,  6  Humph. 
270,  where  the  judge  at  Nisi  Prius  instructed  the  jury  that  such  examination  was  ncces- 
sary,  and  the  charge  was  held  to  be  erroneous ;  Fullerton  v.  Bank  of  U.  S.,  1  Pet.  604, 
infra,  note/. 


CH.  XI.]  AT    WHAT   PLACE    DEMAND    SHOULD   BE   MADE.  43'^ 

indorser  ;  because  this  would  give  uo  right  to  appropriate  the 
money  to  the  payment  of  the  note,  without  the  direction  of  the 
promisor,  and  the  consent  of  tlic  bank  or  banker,  or  some  iisage 
of  trade  or  custom  to  that  effect. (c)  But  if  the  bank  or  banker, 
in  such  case,  has  become  the  owner,  by  discount  or  purchase, 
the  circumstances  just  mentioned  might  perhaps  furnish  a  de- 
fence.(/) 

It  is  not  necessary  for  the  hohier  to  show  that  the  note  was  in 
the  hands  of  the  officer  of  the  bank  whose  duty  it  was  to  receive 
payment ;  (ij-)  nor  even  if  it  were  proved  tliat  it  was  not  in  his 
hands,  would  this  fact  be  material,  provided  the  note  was  in  the 
bank,  and  was  unpaid. (A)  If  the  note  were  in  the  bank,  the  pre- 
sumption is  that  the  proper  officer  could  have  obtained  it ;  and 
if  the  note  is  the  property  of  the  bank,  the  plaintiff  need  not 
prove  that  it  was  at  the  bank,  the  presumption  being  tliat  the 
note  was  there,  and  the  burden  of  proof  is  upon  the  defendant 
to  show  that  the  maker  called  for  the  purpose  of  paying  it.(i) 


(e)  We  liave  found  no  authority  to  this  effect,  but  it  would  seem  that  there  can  be 
no  doubt  of  the  proposition.  But  Stoi-i/,  J.,  in  Bank  of  U.  S.  v.  Carneal,  2  Pet.  543, 
said  :  "  If  the  bank  has  funds  of  the  maker  in  its  hands,  that  might  furnish  a  defence 
to  a  suit  brought  fur  non-payment.  But  this  is  properly  matter  of  defence  to  be 
shown  by  the  party  sued,  like  any  other  payment,  and  not  matter  to  be  disproved  by 
the  bank,  by  negative  evidence."  It  may  be,  however,  that  the  bank  in  this  case  was 
the  owner  of  the  note.  The  suit  was  brought,  it  will  be  seen,  in  the  name  of  the  bank. 
See  Fullerton  v.  Bank  of  U.  S.,  infra,  notey. 

(/)  See  Bank  of  U.  S.  v.  Carneal,  2  Pet.  543,  supra,  note  e.  In  Fullerton  v.  Bank  of 
U.  S.,  1  id.  604,  the  judge,  at  Nisi  Prius,  charged  the  jury,  "  that,  on  a  note  made  payable 
at  a  particular  bank,  it  is  sufficient  to  show  that  the  note  had  been  discounted  and  be- 
come the  property  of  the  bank,  and  that  it  was  in  the  bank,  not  paid  at  maturity."  The 
defendants  excepted,  and  it  was  held  that  the  charge  was  as  favorable  to  them  as  they 
had  a  right  to  claim.  Johnson,  J.  said  :  "  Nothing  more  than  this  could  have  been 
required  by  the  court ;  for  the  positive  proof  that  the  bill  was  not  paid  will  certainly 
imply  that  there  were  no  funds  of  the  drawer  there  to  pay  it.  The  fact  could  not  have 
been  made  more  positive  by  inspection  of  the  books.  The  charge  is,  perhaps,  too 
favorable  to  the  defendants,  since  modern  decisions  go  to  establish  that,  if  the  note  be 
at  the  place  on  the  day  it  is  payable,  this  throws  the  onus  of  proof  of  payment  upon  the 
defendant.  This  is  more  reasonable  than  to  require  of  the  plaintiff  the  proof  of  a  nega- 
tive, and  comports  better  with  the  general  law  of  contracts."  See  Gillett  v.  Averill, 
5  Deuio,  85,  supra,  note  6.  See  also  the  cases  of  Allen  v.  Miles,  4  Harring.  Del.  234  ; 
Mauriu  v.  Perot,  16  La.  276.  The  language  used  in  these  cases  is,  that  it  is  sufficient 
if  the  note  is  at  the  place,  and  there  were  no  funds  of  the  maker  there. 

{y)  See  Jenks  v.  Doylestown  Bank,  4  Watts  &  S.  505,  supra,  p.  435,  note  w ; 
Folger  V.  Chase,   18  Pick.  63,  infra,  note  /. 

(h)  State  Bank  v.  Napier,  6  Humph.  270. 

Ci)  Berkshire  Bank  v.  Jones,  6  Mass.  524  ;  Folger  v.  Chase,  IS  Pick.  63,  where 
37* 


4SS  NOTES  AND  BILLS.  [CH.  XL 

If  the  holder,  on  the  day  of  matm-ity,  finds  the  place  of  pay- 
ment closed,  it  has  been  held  that  he  is  not  bound  to  make  any 
further  demand  to  charge  either  drawer  (y)  or  indorser,(A;) 

If  at  that  time  the  acceptor  be  dead,  a  presentment  at  such 
place  has  also  been  held  sujSicient  to  charge  a  drawer. (Z) 

If  the  office  at  which  payment  was  to  have  been  made  has 
ceased  to  exist  previous  to  and  at  tlie  maturity  of  a  note,  no 
demand  at  all  has  been  held  necessary,(m)  even  where  the  bank 
has  been  sold  to  another  similar  corporation,  which  was  made  the 
agent  of  the  bank  for  settling  its  affairs  of  discount  and  de- 
posit, (w) 

Where  a  note  is  made  payable  at  any  or  at  either  of  the  banks 
of  a  city  or  town,  the  holder  has  a  right  to  elect  at  which  bank 


Wilde,  J.  said  :  "  No  demand  was  necessary  except  at  the  bank  ;  and  altliongh  there  is 
no  express  proof  that  the  notes  were  there,  and  some  officer  of  the  bank  in  attendance, 
at  the  times  the  notes  fell  due,  yet  tliis  must  be  presumed,  and  it  was  for  the  defendants 
to  show  that  the  makers  called  at  the  place  appointed  for  the  purpose  of  making  pay. 
raent.  The  testator  by  his  indorsements  guaranteed  that  the  makers  would  respectively 
be  at  the  bank  and  pay  the  notes  according  to  their  tenor." 

{j)  Hine  v.  Allely,  4  B.  &  Ad.  624,  supra,  p.  435,  note  y.  ' 

{^■)  De  Wolf  v.  Murray,  2  Sandf  166,  siqmi,  p.  435,  note  w. 

(/)  Philpott  v.  Bryant,  3  Car.  &  P.  244,  4  Bing.  717,  1  Moore  &  P.  754,  supra,  p.  427, 
note  d. 

(m)  Erwiu  v.  Adams,  2  La.  318;  Roberts  v.  Mason,  1  Ala.  373.  See  Central  Bank 
V.  Allen,  16  Maine,  41,  infra,  note  n. 

(n)  Roberts  v.  Mason,  1  Ala.  373.  Collier,  C.  J.  said  :  "  The  contract  of  indorsement 
was,  in  law,  an  agreement  on  the  part  of  the  defendant  to  pay  to  the  plaintiff,  if  the 
note  should  be  duly  presented  for  payment  at  the  office  of  discount  and  deposit  of  the 
Bank  of  the  United  States  at  Mobile,  and  legal  notice  be  given  him  of  the  default  of 
the  makers,  in  the  event  of  their  failure  to  provide  for  it.  One  of  the  conditions  on 
which  the  lial)ility  of  the  defendant  depended,  it  became  impossible  to  perform,  in  con- 
sequence of  the  office  of  discount  and  deposit  ceasing  to  exist  previous  to  the  maturity 
of  the  note.  But  it  is  not  pretended  that  that  occurrence  was  produced  by  the  instru- 
mentality of  the  plaintitF,  and  it  cannot  be  held  to  interjiolnte  the  contract  of  indorse- 
ment, so  as  to  make  the  indorser's  liai)ility  de|)end  upon  the  ])erformance  of  a  condition 
by  the  indorsee  which  did  not  constitute  a  part  of  tlie  original  contract."  But  in  Cen- 
tral Bank  v.  Allen,  16  Maine,  41,  a  case  where  the  bank  at  which  the  note  was  payable 
had  cea.sed  to  exist,  and  its  place  of  business  was  occupied  by.  another  bank,  without 
any  arrangement  by  the  latter  as  to  settling  up  the  business  of  tiie  former,  the  court 
seemed  disposed  to  think  that  presentment  should  still  be  made.  Weston,  C.  J.  said  : 
"And  we  are  inclined  to  the  opinion  that  the  Braiu'li  Hank  having  ceased  to  opciate,  if 
their  banking-house  had  not  been  occupied  by  a  similar  institution,  presentment  would 
have  been  excused.  If  this  was  the  place  of  demand,  and  upon  the  fa?ts  we  think  it 
was,  there  is  evidence  of  a  sufficient  presentment  at  that  place."  A  denuxnd  was,  it  will 
be  seen,  made  at  the  latter  bank,  and  the  defendant  contended  that  it  ought  to  have 
been  made  on  the  maker  at  his  place  of  business  or  of  residence;  but  the  court  held 
the  demand  sufficient. 


CH.  XI.]  AT   WHAT    PLACE   DEMAND    SHOULD   BE   MADE.  439 

lie  will  make  the  presentment,  and  a  demand  there  will  be  sufifi- 
ciciit.((;)  This  rule  is  applicable  equally  to  places  where  there 
arc  many  banks,  as  to  those  in  which  there  are  only  a  few.(/y) 
An  opinion  seems  to  have  been  entertained,  that  where  there  are 
several  banks  in  a  large  city,  the  holder  is  bound  to  give  notice 
to  the  promisor  where  his  note  is  ;  (q)  but  this  must  now  be  con- 
sidered as  overruled. (r)  The  reason  given  is,  that  the  stipulation 
as  to  the  place  of  payment  was  not  made  for  the  benefit  of  the 
maker,  but  of  the  holder ;  and  to  require  notice  to  be  given 
where  the  note  is,  would  in  many  cases  be  more  difficult  to  prove 
than  an  actual  presentment  to  the  maker  on  the  day  of  pay- 
ment. (5) 

(o)  Malilcn  Bank  v.  Baldwin,  13  Gray,  1.54,  a  suit  against  the  indorscr  of  a  note 
payable  "at  hank  in  Boston";  North  Bank  v.  Abhot,  13  Pick.  46.5,  an  action  against 
the  indorscr  of  a  note  payable  "at  either  of  the  banks  in  Boston  ";  Jackson  v.  Packer, 
13  Conn.  342,  a  suit  against  the  acceptor  of  a  bill  payable  "  at  either  bank  in  Provi 
dence  "  ;  Langley  v.  Palmer,  30  Maine,  467,  an  action  against  the  indorscr  of  a  nolo 
payable  "at  any  bank  in  Boston";  Page  v.  Webster,  15  id.  249,  a  suit  against  the 
indorscr  of  a  note  payable  at  "  either  of  the  banks  in  Portland." 

(/>)  In  Langley  v.  Palmer,  30  Maine,  467,  a  distinction  was  attempted  to  be  drawn 
on  this  ground  between  that  case  and  Page  v.  Webster,  15  id.  24,  but  the  court  over- 
ruled it,  saying  that  "  the  principle  is  applicable  equally  to  a  note  payable  in  Boston 
as  in  Portland." 

(q)  Shdw,  C.  J.,  North  Bank  v.  Abbot,  13  Pick.  465  :  "  It  would  seem  to  follow, 
from  other  established  rules,  that,  in  such  case,  the  holder  should  give  notice  to  the 
promisor  where  his  note  is.  But  of  this  it  is  not  necessary  to  give  any  opinion  in  the 
present  case,  because  it  was  proved  that,  in  fact,  the  promisor  had  notice  that  his  note 
was  in  the  North  Bank." 

(r)  Maiden  Bank  v.  Baldwin,  13  Gray,  154  ;  Jackson  v.  Packer,  13  Conn.  342,  where 
Wake.  J.  said  that  the  notice  "  was  not  required  by  the  express  terms  of  the  bill,  nor 
has  any  local  usage  upon  that  subject  been  shown,  and  we  know  of  no  rule  of  law  re- 
quiring it.  If  the  parties  wish  for  more  certainty  as  to  the  place  of  payment,  let  them 
be  more  explicit  in  the  bill."  Langley  v.  Palmer,  30  Maine,  467  ;  Page  v.  Webster, 
15  id.  249. 

(s)  Blyelow,  J.,  Maiden  Bank  v.  Baldwin,  13  Gray,  1.54.  In  Page  v.  Webster, 
S/iPjilfij,  J.  said  :  "  This  form  of  a  note  has  been  introduced  into  this  part  of  the  country 
within  a  few  years,  and  it  may  aid  in  determining  the  rights  and  duties  of  the  ])arties  to 
inquire  at  whose  instance  the  note  must  have  been  so  formed.  It  is  not  easy  to  perceive 
what  benefit  the  maker  would  derive  from  a  note  in  that  form,  unless  it  were  made  by 
a  banker  or  banking-house,  in  which  case  there  might  be  hope  of  advantage  from  an 
increased  circulation.  While  the  maker  ordinarily  could  derive  no  advantage  from 
such  a  form,  he  might  justly  apprehend  some  inconvenience  in  looking  up  the  note  to 
pay  it.  For,  as  it  regards  him,  it  is  quite  clear  that  the  holder,  by  the  law  in  this  and 
most  of  the  other  States,  is  not  obliged  to  have  it  at  the  place  where  jiayable  A 
readiness  to  pay  at  the  appointed  place  is  matter  in  defence  only.  It  is  not,  therefore, 
probable  that  it  was  so  formed  for  his  interest  or  accommodation.  To  the  payee  it 
might  be  of  advantage.     He  misrht  be  desirous  of  making  use  of  the  note  in  the  mar- 


440  NOTES   AXD   BILLS.  [CH.  XL 

Where  a  note  is  payable  at  two  places,  the  holder  has  a  right 
to  present  it  at  either  he  may  choose  ;  (t)  and  if  a  bill  be  payable 
in  a  city,  and  the  acceptor  has  no  residence  or  place  of  business 
there,  it  will  be  sufficient  to  charge  the  drawer  if  the  bill  is  in 
the  city  at  the  day  of  maturity,  ready  to  be  delivered  up  to  the 
acceptor  if  he  should  come  to  pay  it.(z/) 

If  a  bill  is  drawn  on  a  person  residing  in  one  place,  payable  in 
another,  it  is  said  that,  in  case  of  an  acceptance  and  subsequent 
refusal  by  the  acceptor  to  pay,  the  latter  is  the  proper  place  hi 


ket,  or  at  a  banking-liouse,  to  obtain  the  money  before  it  became  due.  It  would  be 
convenient  to  have  it  payable  at  a  bank,  to  save  the  risk  and  trouble  of  a  present- 
ment to  the  maker.  And  if  made  payable  at  a  particular  bank,  it  would  not  be  so 
readily  received  at  other  banks,  because  it  would  subject  them  to  the  risk  and  trouble 
of  being  watchful  for  the  day  of  payment,  and  of  sending  it  to  the  bank  where  pay- 
able for  presentment.  It  would  be  natural  for  business  men  to  endeavor  to  obviate 
this  difficulty,  so  as  to  enable  them  the  most  readily  to  obtain  cash  fur  the  note  at 
any  bank,  not  being  limited  to  one,  where  funds  were  to  be  loaned.  A  note  payable 
at  any  bank  in  a  })lace  would  therefore  be  desirable  to  the  payee,  and  it  is  but  rea- 
sonable to  conclude  that  such  a  form  was  introduced  for  his  convenience  and  interest. 
And  if  so,  does  it  not  show  that  the  intention  of  the  parties  was  to  relieve  the  payee  or 
holder  from  risks  and  troubles  to  which  he  might  be  subjected  if  made  payable  at  any 
one  bank  only  ?  And  if  such  were  the  intentions  of  the  parties,  they  can  only  be  car- 
ried into  effect  by  requiring  the  maker  to  look  for  his  note  at  all  the  places  where  he 
promises  to  pay  it.  For  to  require  the  holder  to  give  the  previous  notice  now  insisted 
upon,  would  not  only  defeat  the  oiyect  of  relieving  from  trouble  and  risk,  but  would 
subject  to  much  greater  than  if  made  payable  at  one  bank  only.  The  maker's  express 
promise  to  pay  at  any  one  of  several  places  would  indicate  to  a  common  mind  the 
duty  to  act  according  to  what  is  supposed  to  have  been  the  intention  of  the  parties,  and 
to  look  at  all  the  places  for  it,  or  have  funds  tiiere  wlien  it  became  due.  And  as  re- 
spects his  own  liabilities,  it  has  already  been  seen  that  he  must  do  it  to  relieve  himself 
from  the  danger  of  costs,  or  at  least  must  show  in  defence  a  readiness  at  some  place 
named.  The  payee  never  could  have  designed,  by  receiving  a  note  in  that  form,  to 
have  incurred  the  responsibilities  now  supposed  to  attach  to  it,  yet  if  there  is  any  rule 
of  law  so  clearly  settled  and  well  established  as  to  decide  the  legal  construction  which 
ought  to  be  given  to  a  contract  in  that  form,  the  parties  must  be  supposed  to  intend  to 
(onform  to  it." 

(/)  Beeching  v.  Gower,  Holt,  N.  P.  .313,  where  the  note  was  jjayable  at  Maidstone, 
and  at  Hamsbottom  &  Co.'s,  London. 

{it)  Boot  L-.  Franklin,  3  Jolins.  207,  where  the  bill  was  payable  in  London,  and  the 
declaration  stated  that  the  bill  not  being  |)aid,  and  the  holders,  not  knowing  where  to 
present  the  same  for  ijayment  in  London,  caused  the  same  to  be  protested.  Kmt,  C.  J. 
said  :  "  Nor  were  the  holders  bound  to  go  elsewhere  to  seek  the  drawees,  as  the  bill  had 
directed  the  payment  to  be  in  London.  They  conformed  their  conduct  lo  the  tenor  of 
the  bill.  They  were  in  London  on  the  day  of  payment,  ready  to  receive  payment,  and 
they  did  all  that  they  were  enal)led  to  do  ;  they  caused  liie  bill  to  be  there  protested.  Tho 
declaration  in  this  case  al.so  states  sufficient  to  entitle  the  plaintiiVs  to  recover."  See  also 
Ma.son  t.  Franklin,  3  Johns.  202.     Digelow,  J.,  Maiden  Bank  v.  Baldwin,  13  Gry/,  151. 


CH.  XI.]  AT   WHAT   PLACE   DEMAND   SHOULD   BE   MADE.  441 

which  to  make  presentment. (?;)  But  where  a  bill  drawn  in  thip 
way  had  been  accepted  for  the  honor  of  the  payee,  "  if  regularlj' 
protested  and  refused  when  due,"  a  presentment  in  the  place 
where  the  drawee  resided,  without  any  at  the  place  where  the  bill 
was  drawn  payable,  was  held  to  be  sufficient. (z<^) 

The  fact  that  a  note  is  dated  at  a  certain  place,  it  need  hardly 
be  necessary  to  remark,  does  not  make  the  note  specially  payable 
there. (a;)     It  may  have  the  effect  of  leading  a  holder,  who  has 

{v)  Story  on  Bills,  §§  282,  .S53.  See  Chitty  on  Bills,  1 0th  Lond.  ed.,  240.  Bnt  in  Ma- 
son v.  Franklin,  3  Johns.  202,  :i  Inll  drawn  on  a  person  at  Liverpool,  payable  in  London, 
was  protested  for  non-acceptance  in  Liverpool,  and  afterwards  for  non-payment  at 
the  same  place.  Kent,  C.  J.,  after  remarking  that  a  good  cause  of  action  had  arisen  on 
the  protest  for  non-acceptance,  said  :  "  But  we  are  of  opinion  that,  as  no  place  of  pay- 
ment in  London  was  designated,  the  demand  for  payment  and  protest  for  non-payment 
were  well  made  upon  the  drawees  personally  at  Liverpool.  It  would  have  been  a  very 
idle  act  for  the  holder  to  have  gone  into  London  to  make  inquiry,  when  no  place  in 
London  was  pointed  out  in  the  bill,  and  when  the  drawees  resided  at  Liverpool,  and 
had  refused  to  accept  the  bill.  The  law  merchant  has  not  pointed  out  any  particular 
spot  in  London  for  such  inquiries,  and  to  have  attempted  it  at  large  would  have  been 
the  height  of  absurdity.  The  common  law  in  general,  and  especially  the  commercial 
law,  which  forms  a  distinguished  branch  of  it,  is  founded  on  the  princijiles  of  utility  and 
common  sense  ;  and  it  would  be  truly  surprising,  and  repugnant  to  the  very  spirit  of 
the  system,  if  an  inquiry  so  senseless  was  requisite  to  consummate  the  right  of  the 
holder  of  the  bill.  It  must  be  a  sound  rule,  that  where  no  particular  place  of  payment 
is  fi.xed,  a  demand  upon  the  drawee  personally  is  good.  A  general  refusal  to  pay,  was 
a  refusal  to  pay  according  to  the  face  of  the  bill.  It  was  equivalent  to  a  refusal  to  pay 
in  London.  We  do  not  mean  to  say  that  the  demand  of  payment  at  Liverpool  was 
indispensable.  Tiic  bill  being  payable  at  London,  it  would  have  been  sufficient  for  the 
holder  to  have  been  there  when  the  bill  fell  due,  ready  to  receive  payment.  In  the  pres- 
ent case  a  protest  at  London,  or  a  demand  and  protest  at  Liverpool,  were  sufficient,  and 
the  holder  might  take  cither  course.  The  holders  elected  to  demand  payment  of  the 
drawers  personally  at  Liverpool,  and  to  cause  the  bill  to  be  protested  there,  and  the 
plaintiffs  accordingly  did  all  that  in  reason  or  law  can  be  required  to  fix  the  antecedent 
j)arties  to  tiie  i)ill." 

(w)  Mitchell  v.  Baring,  10  B.  &  C.  4.  In  Chitty  on  Bills,  10th  Lond.  ed.,  241,  it  is 
said  :  ''  This  case,  though  decided  upon  the  peculiar  form  of  the  acceptance,  and  there- 
fore not  involving  the  general  question  as  to  the  usage  and  custom  of  merchants,  was 
nevertheless  considered  as  sufficiently  casting  a  doubt  upon  the  validity  of  the  pre- 
vious practice  to  require  the  interference  of  the  legislature ;  and  accordingly  the  Act 
of  2  &  3  Wm.  IV.  c.  98,  was  passed."  By  the  terms  of  this  statute,  such  a  bill  as 
that  in  Mitchell  i'.  Baring  may,  without  further  presentment  to  the  drawee,  be  protested 
for  non-payment  at  the  place  where  it  is  payable. 

(.r)  Lightner  v.  Will,  2  Watts  &  S.  140.  In  Taylor  v.  Snyder,  3  Denio,  14.5, 
Beardslci/,  J.  said  :  "  The  date  of  a  note  at  a  particular  place  does  not  make  that  tlie 
place  of  i)ayment,  or  at  which  payment  should  be  demanded  for  the  purpose  of  charg- 
ing the  indorser.     This  was  expressly  adjudged  in  the  case  of  Anderson  v.  Drake,  14 

Johns.  114 It  has  been  supposed  that  the  case  of  Stewart  v.  Eden,  2  Caines,  121, 

•ount'  nances  a  different  doctrine.     Livingston,  J.  there  said  :  '  The  notes  being  dated  in 


442  NOTES  AND   BILLS.  [CH.  XL 

no  knowledge  of  the  place  of  residence  or  business  of  the  maker, 
to  suppose  that  he  might  be  found  there. (y)  Perhaps  it  may  be 
said,  generally,  that  the  date  of  a  certain  place  raises  the  pre- 
sumption that  the  paper  is  payable,  and  therefore  to  be  demanded, 
at  that  place. 


SECTION    YII. 

EXCUSES   FOR  ABSENCE  OF   DEMAND   OF  PAYMENT. 

"We  have  already  stated  that  all  the  parties  subsequent  to  the 
principal  payor  are  only  as  his  guarantors,  and  promise  to  pay 
only  on  condition  that  a  proper  demand  of  payment  be  made, 
and  due  notice  be  given  to  them  in  case  the  note  or  bill  is  dis- 
honored. And  we  repeat  this  as  one  of  the  fundamental  prin- 
ciples of  the  law  of  negotiable  paper ;  and  the  infrequency  and 
the  character  of  the  circumstances  which  will  excuse  the  holder 
from  making  the  demand,  and  still  preserve  to  him  all  his  rights 
as  effectually  as  if  it  were  made,  will  illustrate  the  stringency  of 
the  rule  itself. 

The  only  general  and  universal  rule  which  can  be  laid  down 
with  respect  to  demand  is,  that  in  all  bills  of  exchange,  the 


New  York,  tlie  maker  and  indorser  are  presumed  to  liave  resided  and  contemplated 
payment  there.'  This  remark  was  in  part  strictly  correct,  for  tlie  date  of  the  note  was 
presumptive  evidence  of  residence ;  and  in  a  general  sense  it  ma}'  also  be  true  that  tho 
date  raises  a  presumption  that  the  parties  contemplated  payment  at  that  place.  Judge 
Livingston  did  not  say  that  the  note  was,  by  law,  payable  at  the  place  of  its  date ;  on 
the  contrary,  the  form  of  expression  conclusively  rcjicls  that  idea.  lie  was  not  speak- 
ing of  what  the  parties  were  bound  to  do  by  the  terms  of  tho  note,  of  their  legal  obli- 
gations flowing  from  the  engagement  as  maker  and  indorser,  but  simply  of  what  they 
were  presumed  to  have  contemplated There  is  nothing,  therefore,  in  this  re- 
mark of  Judge  Livingston  which  can  bo  made  to  countenance  the  idea  that  a  note, 
when  no  other  place  of  payment  is  specified,  is  by  law  payable  at  the  place  of  its  date. 
Anderson  v.  Drake,  14  Johns.  114,  supra  :  Bank  of  America  v.  Woodworth,  18  Johns. 
322."  In  Fisher  ».  Evans,  .5  Binn.  541,  Til(/limim,  C.  J.  said  :  "  I  can  find  no  such  prin- 
ciple as  that  for  which  the  plaintiff  in  error  contends,  that  the  place  wlicre  the  bill  is 
drawn  must  be  taken  to  be  the  residence  of  tho  drawer."  Gal|)in  v.  Hard,  3  McCord 
394.  Sec  Burrows  i;.  Ilannegan,  1  McLean,  309.  But  see  the  cases  cited  htfiu,  p. 
^.^S,  note  a,  where  a  different  doctrine  seems  to  be  laid  down. 

(//)  W/iilimn,  C.  J.,  Pierce  i-.  Whitney,  22  Maine,  11.'},  29  id.  188.  See  the  cuse? 
cited  sii/ira,  p.  441,  noto  r ;  Duncan  v.  M'CuUough,  4  S.  &  11.  480  ;  Nailor  v.  B'lwie, 
3  Md.  251. 


CH.  XI.]      EXCUSES   FOR   ABSENCE   OF   DEMAND   OF   PAYMENT.  443 

holder,  in  order  to  recover  of  the  drawers  or  indorsers,  "  must 
prove  a  demand  of,  or  due  diligence  to  get  the  money  from,  the 
acceptor  ";  (2^)  and  in  all  actions  upon  promissory  notes  by  aj^.  in- 
dorsee against  the  indorser,  the  plaintiff  must  prove  a  demand  of, 
or  due  diligence  to  get  the  money  from,  the  maker  of  the  note. (a) 

The  question  of  excuse,  then,  will  depend  upon  the  fact 
whether  due  diligence  has  been  used  to  find  the  maker  or  ac- 
ceptor, and  presents  the  ordinary  inquiry  as  to  negligence.  That 
question  may,  and  often  does,  depend  on  such  a  variety  of  cir- 
cumstances, tliat  it  is  very  difficult,  if  not  impossible,  to  reduce 
them  to  any  fixed  or  invariable  rule. (6)  When  there  is  no  dis- 
pute about  the  facts,  due  diligence  is  a  question  of  law  for  the 
court  to  determine  ;  (c)  and  where  the  facts  are  controverted,  or 
the  proof  equivocal  or  contradictory,  it  would  seem  to  be  a  mixed 
question  of  law  and  fact.(c?) 

Tlie  principal  excuses  resolve  themselves  into  two  classes: 
First,  tlie  impossibility  of  demand.  Second,  the  acts,  words,  or 
position  of  a  party,  provhig  that  he  had  no  right,  or  waived  all 
right,  to  the  demand,  of  the  want  of  which  he  would  avail  himself. 

1.    Where  the  Demand  for  Payment  cannot  be  made. 

That  impossibility  should  excuse  non-demand  is  obvious ;  for 
the  law  compels  no  one  to  do  what  he  cannot  perform.  But  it 
must  be  actual,  and  not  merely  hypothetical ;  and  though  it  need 
not  be  absolute,  no  slight  difficulty  will  have  this  effect. 

We  have  already  considered  the  law  of  demand  with  reference 
to  the  person  by  whom  it  is  to  be  made,  of  whom  it  is  to  be 
made,  and  as  regards  the  method,  time,  and  place  of  making 
it.  We  will  now  consider  the  impossibility  of  presentment  with 
reference  to  the  same  points,  and  afterwards  with  respect  to 
other  circumstances. 


(z)  Lord  Mansfield,  C.  J.,  Heylyn  v.  Adamson,  2  Burr.  669,  678 ;  Kent,  J.,  Munroe 
V.  Easton,  2  Johns.  Cas.  75. 

(a)  Lord  Mansfield,  C.  J.,  Heylyn  v.  Adamson,  2  Burr,  669,  678. 

(6)  Slorrs,  J.,  Windham  Bank  v.  Norton,  22  Conn.  213,  221. 

(c)  Wheeler  v.  Field,  6  Met.  290,  where  the  notary  testified  that  he  had  used  due 
diligence,  and  the  mry,  in  reply  to  a  question  by  the  court,  stated  that  they  had  found 
that  due  diligence  was  used  ;  but  the  court  set  aside  their  verdict  in  favor  of  the  plain- 
tiff, and  ordered  a  new  trial.  See  Orearv.  McDonald,  9  Gill,  3.iO  ;  Cathell  v.  Goodmn, 
1  Harris  &  G.  468. 

{d)  See  Orear  v.  McDonald,  9  Gill,  3.50  ;  Cathell  v.  Goodwin,  1  Harris  &  G.  468. 


444  NOTES   AND    BILLS.  [CH.  XI. 

.  If  at  the  time  a  note  or  bill  matures  the  holder  is  dead,  and 
no  executor  or  administrator  is  appointed,  it  is  clear  that  no  de- 
mand can  be  made  at  that  time ;  and  consequently  this  fact 
operates  as  an  excuse,  but  not  in  general  for  an  entire  want  of 
demand,  but  for  a  presentment  at  what  would  otherwise  be  the 
time  required  by  law.  The  executor  or  administrator  has  a  rea- 
sonable time  after  appointment  in  such  cases  Avithin  which  to 
present  the  note  or  bill.(e)  So  where  an  agent  with  whom  a  note 
had  been  left  for  collection  died  four  days  before  maturity,  after 
an  illness  of  more  than  a  month,  and  about  three  weeks  after- 
wards his  executrix  discovered  the  note  locked  up  in  his  desk, 
where  it  had  remained  unknown  to  her,  and  caused  it  to  be  im- 
mediately presented,  the  indorser  was  charged. (/) 

Where  there  is  no  person  upon  whom  it  is  possible  to  make  a 
demand,  the  indorser  must  of  course  be  liable  without  one.  As 
where  a  note  was  signed  by  an  agent  having  authority  so  to  do, 
and  the  note  was  subsequently  indorsed,  the  principal  being  dead 
at  the  time  the  note  was  made  and  delivered,  no  demand  was 
held  necessary. (g-)  And  the  same  would  probably  be  held  where 
the  apparent  maker  was  living,  but  the  note  was  void  against 
hini,(/i)  on  account  of  usury, (i)  illegal  consideration,  or  forgery ; 
or  where  the  maker  was  a  married  woman ;  or  perhaps  a  minor, 
both  at  the  time  of  making  and  of  maturity ;  though  some  doubt 
might  be  entertained  in  the  last  case.(y)     But  cases  may  be  im- 


(e)  White  v.  Stoddard,  1 1  Gray, 

(/)  DuL'Ruii  V.  King,  Rice,  239. 

((j)  Burrill  v.  Smith,  7  Pick.  291,  where  Parker,  C.  J.  said  :  "In  this  case,  one  of 
the  strong  points  of  tlie  argument  for  tlie  defendant  is,  that  tlicre  lieing  in  fact  no  prom- 
isor, the  indorser,  if  compelled  to  pay,  will  have  none  to  call  upon  to  reimhurse  him. 
Also,  that  the  common  requisites  of  an  action  against  indorsers  cannot  he  complied 
with,  for  there  can  be  no  demand  upon  the  promisor.  But  this  will  affect  only  tho 
form  of  the  declaration.  The  same  difficulty  —  if  it  is  one  —  will  occur  in  tho  ca.ses  of 
void  or  voidai)lc  notes  above  mentioned  ;  for  a  demand  in  such  cases  would  be  merely 
formal.  The  administrator  of  a  deceased  person,  whose  name  appears  to  a  note,  may 
as  well  be  called  ujjon,  in  order  to  give  an  action  against  an  indorser,  as  the  person 
whose  name  is  forged.  An  averment  that,  at  the  time  of  writing  the  note  by  the  attor- 
ney for  the  prineijjal,  tlio  piincipal  was  dead,  would  be  suffiriciit  to  entitle  the  plaintiff 
to  recover." 

(/i)   Chandlers.  Mason,  2  Vt.  193. 

(j)  Copp  V.  M'Dugall,  9  Mass.  1,  where  the  evidence  of  the  note  being  void  was 
considered  an  admission  or  recognition  of  the  illegality  of  the  note  by  the  indorser. 

(j)  See  the  remarks  of  Parker,  C.  J.,  supnt,  note  y.  The  void  or  voidable  notes 
just  mentioned  are  notes  void  between  promisors  and  payee,  on   account  of  usr/y 


CH.  XI.]       EXCUSES    FOR   ABSENCE    OF   DEMAND    OF   PAY.MENT.  445 

agined  under  almost  any  of  tlie  circumstances  above  mentioned, 
in  whicli  the  maker  has  intimated  a  purpose  of  waiving  sucli  de- 
fence ;  and  if  so,  it  might  be  thought  that  a  demand  should  be  made 
of  him.  And  if  this  be  so,  should  not  a  demand  be  made,  on  the 
ground  that,  as  the  defence  might  be  waived,  the  indorser  had  a 
right  to  insist  that  a  proper  etifort  should  be  made  to  ascertain 
whether  the  maker  intended  to  make  such  waiver  or  avail  him- 
self of  the  defence  ?  The  authorities  do  not  aid  us  much  in 
answering  all  these  hypothetical  questions.  But  the  nature  and 
purpose  of  negotiable  bills  and  notes,  and  the  decisions,  as  far 
as  they  go,  would  lead  us  to  lay  down  the  rule,  as  at  least  gen- 
erally applicable,  that,  wherever  the  maker  has  an  unquestiona- 
ble and  certain  defence  in  law,  it  will  be  the  presumption  of  law 
that  he  will  make  this  defence,  and  therefore  there  need  be  no 
demand  of  him.  Nor  is  tlie  indorser  injured  by  this  rule  ;  for  if 
the  liability  of  the  maker  is  wholly  at  his  own  option,  he  will  be 
at  liberty  to  pay  the  debt  to  relieve  or  indemnify  the  indorser,  as 
for  the  immediate  benefit  of  the  holder,  and  so  the  indirect  bene- 
fit of  the  indorser. 

We  have  already  seen,  that,  where  the  maker  dies  before  the 
note  matures,  the  general  rule  is,  that  demand  should  be  made 
of  his  personal  representatives  ;  (k)  consequently  the  death  of 
the  maker  or  acceptor  is  no  excuse  for  non-presentment.  And 
this  is  so  even  when  the  indorser  whom  it  is  sought  to  charge 
has  been  appointed  administrator  of  the  maker's  estate. (/)  But 
where  there  are  no  personal  representatives,  of  course  no  demand 
can  be  made.  Thus,  where  the  maker  and  his  whole  family 
were  drowned  two  days  before  the  note  matured,  there  being  no 
will,  and  no  administration  having  been  taken  out  on  the  estate, 
it  was  held  that  no  demand  was  necessary,  (m) 


or  other  illegal  consideration.  So  if  the  indorsement  is  made  of  a  note  made  by  a 
minor  or  of  a.  feme  covert,  and  even  if  the  name  of  tlie  promisor  is  forged.  As  regards 
voidable  notes,  a  distinction  might  be  made  on  the  ground  that  the  makers  might  pay, 
altiiough  they  are  not  obliged  so  to  do  ;  and  it  might  be  said,  that,  in  order  to  consti- 
tute due  diligence  on  the  part  of  the  holder,  he  should  make  a  presentment,  to  see  if 
they  would  not  honor  the  notes.  The  necessity  of  demand  would,  it  is  conceived,  bo 
still  stronger  where  the  maker  has  come  of  age  before  the  note  has  matured ;  as  circum- 
stances might  have  happened  amounting  to  a  ratification. 

(k)  Supra,  p.  364,  note  x. 

(/)  Magruder  v.  Union  Bank,  3  Pet.  87  ;  Juniata  Bank  v.  Hale,  IBS   &  R.  157. 

(m)  Haslett  v.  Kunhardt,  Rice,  189,  Richardson,  J.  dissenting. 

VOL.  I.  38 


446  NOTES   AXD   BILLS.  [CH.  XL 

But  where  an  administrator  has  been  appointed,  and  by  law  is 
entitled  to  a  certain  time  within  which  to  settle  up  the  estate  of 
the  deceased,  prior  to  the  expiration  of  which  he  is  not  liable  to 
be  sued  by  any  creditor  of  the  estate,  a  demand  upon  him  has 
been  held  to  be  excused,  provided  the  note  fall  due  witbin  the 
time  limited,  but  not  otherwise. (w) 

Where  neither  the  maker  nor  his  last  and  usual  place  of  busi- 
ness or  residence  can  be  found,  no  demand  need  be  made,  but 
the  holder  must  prove  that  he  used  due  diligence  to  find  them, 
and  that  his  efforts  proved  unavailing,  (o) 

2.    Of  Insolvency. 

As  between  tbe  holder  of  negotiable  paper  and  the  prior  par- 
ties thereto,  the  insolvency  or  bankruptcy  of  the  maker  or  ac- 
ceptor will  constitute  no  excuse  for  want  of  demand. (/?)  The 
rule  is  the  same  whether  the  payor  becomes 'in solvent  between 
the  time  of  indorsing  the  note  and  its  maturity,(^)  or  is  insolvent 
before  and  at  the  time  of  the  indorsement,  and  his  insolvency  is 
known  to  tlie  indorser  when  he  puts  his  name  upon  the  note.(/') 

(n)   Supra,  p.  .364,  notes  y  and  z. 

(o)   Iii/ra,  p.  448,  note  d. 

(p)  In  Itussel  V.  Langstaffe,  2  Doug.  .514,  515,  it  was  said  by  counsel  in  argument,  that, 
"as  to  the  bankruptcy,  it  had  been  frequently  ruled  by  Lord  Mansfield  at  Guildhall,  that 
it  is  not  an  excuse  for  not  making  a  demand  on  a  note  or  bill,  or  for  not  giving  notice  of 
non-payment,  that  the  drawer  or  acceptor  had  become  a  bankrupt;  as  many  means  may 
remain  of  obtaining  payment,  by  the  assistance  of  friends  or  otherwise."  But  the  case 
itself  turned  on  anotiicr  point.  This  statement,  however,  was  recognized  as  law  by 
Lord  Elienborough,  in  Warrington  v.  Furbor,  8  East,  242 ;  and  in  Esdaile  v.  Sowerby, 
II  id.  114,  he  said  :  "  It  is  too  late  now  (1809)  to  contend  tliat  the  insolvency  of  the 
drawer  or  acceptor  dispenses  with  tlie  necessity  of  a  demand  of  payment  or  of  notice  of 
the  dishonor."  So,  in  Nicholson  r.  Gouthit,  2  II.  Bl.  609,  Eyre,  C.  J.  said  :  "  It  sounds 
harsh  that  a  known  bankruptcy  should  not  be  equivalent  to  a  demand  or  notice  ;  but 
the  rule  is  too  strong  to  be  dispensed  with."  Sec  Bowes  v.  Howe,  5  Taunt.  30,  16 
East.  112;  Sands  v.  Clarke,  8  C.  B.  751.  So  also  Parsons,  C.  J.,  Bond  v.  Farnham, 
5  Mass.  170;  Shaw  l\  Reed,  12  Pick.  132;  Granite  Bank  v.  Ayers,  16  id.  392;  Mead 
V.  Small,  2  Grecnl.  207  ;  Grcely  v.  Hunt,  21  Maine,  455  ;  Hunt  v.  W.adieigh,  26  id. 
271  ;  Orear  v.  McDonald,  9  Gill,  350 ;  Armstrong  v.  Thruston,  1 1  Md.  148,  where  insol- 
vency was  held  to  bo  no  excuse  for  non-demand  of  the  maker  himself,  and  a  demand 
on  the  assignee  was  held  insufficient.  Sec  also  Benedict  v.  Caffe,  5  Duer,  226.  Sed 
qumre.  Edwards  v.  Thayer,  2  Bay,  217  ;  Bruce  v.  Lytle,  13  Barb.  163,  where  a  demand 
was  made  but  five  days  after  maturity,  and  tiie  indorser  was  discharged. 

(7)   Crossen  v.  Hutchinson,  9  Mass.  205. 

(r)  Sandford  v.  Dillaway,  10  Mass.  52;  Farnum  v.  Fowlc,  12  id.  89;  Jcrvey  v. 
Wilbur,  1  Bailey,  453  ;  Aliwood  v.  Haseldon,  2  id.  457,  where  the  same  rule  was  ap- 
plied to  a  note  indorsed  after  maturity  ;  Hightowcr  v.  Ivy,  2  Port.  Ala.  308.     Contra, 


CH.  XI.]      EXCUSES   FOR   ABSENCE   OF   DEMAND   OF   PAY:MENT.  447 

The  reason  is  to  be  found  in  the  stringency  of  tlie  rule  requiring 
demand,  coupled  witli  the  fact  that  it  is  possible  tliat  the  note 
may  still  be  paid  by  the  assistance  of  friends,  or  otherwise. 

As  between  third  parties,  whether  a  presentment  to  the  maker 
may  not  be  dispensed  witli,has  been  treated  as  a  distinct  question 
from  that  of  the  necessity  of  presentment  as  against  the  maker  or 
indorser  of  a  note.(s)  This  question  has  arisen  where  a  note  is 
received  in  payment,  both  parties  being  ignorant  of  the  insol- 
vency of  the  maker  ;  and  the  point  is,  whether  the  person  who 
takes  the  note  may  not  recover  of  the  party  from  whom  he 
receives  it,  without  any  presentment  to  the  maker.  For  a  con- 
sideration of  this  subject  reference  may  be  had  to  the  chapter  on 
Payment. (/!)  As  neither  death  alone,  nor  insolvency  alone,  will 
excuse  a  want  of  demand,  so  the  death  of  the  maker  leaving  his 
estate  insolvent  will  be  insufficient. (w) 

Insolvency  also  conies  into  consideration  as  an  excuse,  where 
it  is  connected  with  other  circumstances.  Thus,  where  the 
drawer  had  become  bankrupt,  and  the  acceptor  unable  to  pay  ; 
the  latter,  in  the  presence  of  both  holder  and  drawer,  declared 
y  that  he  should  not  pay  the  bill  when  presented  ;  a  demand  upon 
him  at  maturity  was  held  to  be  still  necessary  in  order  to  entitle 
the  holder  to  prove  the  debt  against  the  drawer's  estate. (y)  A 
similar  question  also  arises  where  the  maker  becomes  insolvent, 
and  absconds  ;   this  point  will  be  treated  subsequently, (i^)    as 


De  Berdt  v.  Atkinson,  2  H.  Bl.  336.  Tliis  case  will  be  further  considered  in  the 
next  chapter.  In  Clark  v.  Minton,  cited  2  Const.  R.  680,  682,  the  recorded  insolvency 
of  the  maker  at  maturity  was  held  an  excuse  for  want  of  demand.  This  case  is  re- 
ported in  2  Brev.  185.     See  also  Kiddell  v.  Peronneau,  cited  2  Brev.  188. 

(s)  Maule,  J.,  Sands  v.  Clarke,  8  C.  B.  751,  761. 

{t}  Infra,  Vol.  11.  ch.  7.  The  cases  on  the  subject  of  payment  will  be  seen  to  be  ia 
i  state  of  conflict,  and  the  law  on  the  point  under  consideration  would  probably  depend 
upon  the  view  entertained  by  the  courts  of  any  particular  State  on  the  general  subject 
of  payment. 

(«)  Gower  i;.  Moore,  25  Maine,  16  ;  Lawrence  v.  Langley,  14  N.  H.  70,  an  action 
against  the  indorser  of  a  joint  note,  one  of  the  makers  of  which  had  died  insolvent 
and  the  other  had  fiiiled  ;  Johnson  v.  Harth,  I  Bailey,  482.  In  Davis  v.  Francisco, 
11  Misso.  572,  where  it  appeared  that  the  indorser,  when  he  indorsed  the  note,  which 
was  done  after  maturity,  knew  the  fact  of  the  maker's  death,  a  demand  was  held  un- 
necessary, Scott,  J.  dissenting.  The  fact  of  knowledge,  it  is  conceived,  could  hardly 
make  any  diflerence  in  the  law. 

(y)  Ex  parte  Bignold,  2  Mont.  &  A.  633,  1  Deac.  712.  How  far  declarations  of  the 
patties  may  affect  the  question  of  excuse  will  be  considered  in/ra. 

(«;)  Infra,  p.  449  et  seq. 


448  NOTES    AND    BILLS.  [CH.  XI 

also  the  conduct  necessary  to  be  pursued  by  the  holder  wliere 
the  note  was  indorsed  for  the  accommodation  of  the  maker,  and 
the  latter  has  failed. (.X') 

In  case  of  a  partnership  note  and  a  failure  of  the  firm,  it  will 
still  be  necessary  to  present  to  one  of  the  partners,  or  to  use  due 
diligence  to  find  one  ;  a  demand  at  what  was  their  place  of 
business  before  failure,  but  not  occupied  by  either  of  them  at 
maturity,  is  insufficient. (y) 

3.    Of  other  Circumstances. 

With  regard  to  impossibility  connected  with  the  method  of 
presentment,  it  has  already  been  said  that  the  party  wlio  makes 
the  demand  must  have  the  note  with  him  at  the  time  ;  but  if  the 
note  or  bill  is  lost,  it  is  obvious  that  this  requirement  cannot 
be  complied  with. (2:)  Yet  this  fact  will  not  excuse  want  of 
presentment,  as  will  be  seen  subsequently,  (a) 

With  respect  to  the  impossibility  of  presentment  as  to  time,  a 
question  may  arise  where  the  holder  receives  a  note  so  near 
maturity  that  it  will  be  impossible  for  him  to  make  a  demand 
before  that  time.  This  will  be  connected  with  the  point,  as  to 
what  effect  the  distance  of  the  place  of  residence  or  of  business 
of  the  maker  will  have  upon  the  subject  of  excuse,  and  will  be 
considered  in  that  connection. (6) 

We  have  already  seen  that  a  neglect  to  present  negotiable 
paper  in  which  no  particular  time  is  mentioned  for  making  the 
demand,  is  excused,  if  the  holder,  within  the  period  at  which  he 
should  have  presented  it,  puts  it  into  circulation. (c) 

Where  neither  the  maker  nor  his  last  and  usual  place  of  busi- 
ness or  of  residence  can,  by  the  exertion  of  due  diligence,  be 
found,  tlie  holder  may,  by  showhig  these  facts,  hold  an  indorser 
liable. ((/)     Thus,  where  the  maker  of  a  note  is  a  sailor,  who  has 

(x)  hfra,  p.  555. 

(y)  Granite  Bank  v.  Ayers,  16  Pick.  392.     See  infra,  noted. 

(z)  Tnfm,  Vol.  II.  ch.  9. 

(«)   Infra,  Vol.  II.  ch.  9. 

(h)   Infra,  p.  456. 

(c)  Supra,  p.  267. 

(d)  Duncan  v.  M'Cullough,  4  S.  &  R.  480 ;  Franklin  v.  Verbois,  6  La.  727.  In  this 
case  tlie  notary  certified,  "that  diligent  inquiry  was  made  at  several  places  of  public 
resort  in  tliis  city  and  elsewhere  for  the  drawer  of  the  note,  in  order  to  demand  payment, 
but  he  could  not  be  found,  nor  any  person  who  could  tell  where  he  was  to  be  found."  Tho 


CH.  XI.]       EXCUSES   FOR   ABSENCE   OF   DEMAND    OF   PAYMENT.  44? 

no  esta))lislied  place  of  abode,  and  is  at  sea  when  the  note  ma- 
tures, proof  of  these  facts  will  constitute  a  sufficient  excuse  for 
non-prescntracnt.(e)  But  if  he  has  a  place  of  residence  where 
his  family  arc  living  when  the  note  matures,  it  will  be  necessary 
to  present  it  there. (/) 

Where  the  maker  has  absconded,  according  to  many  author- 
ities, the  holder  is  entitled  to  recover  of  an  indorser,  by  simply 
proving  this  fact  and  due  notice,  without  showing  any  further 
search. (ij")     But  in  a  late  case  in  Massachusetts  it  has  been  held 

defendant  introduced  testimony  to  show  tluit  the  maker  was  living  with  his  mother  in  the 
same  city  where  the  protest  was  made.  The  demand  was  held  sufficient  to  charge  the  in- 
dorser. Ballard,  J.  said  :  "  There  is  no  evidence  to  show  that  the  holder  of  the  note,  or 
the  notary,  knew  the  domicil  of  the  maker  ;  and  we  are  of  opinion  that  making  diligent 
inquiry  for  the  maker,  and  for  his  domicil,  without  effect,  excuses  the  want  of  a  formal 
demand."  In  Stewart  v.  Eden,  2  Caines,  121,  the  general  principle  seems  to  be  taken 
for  granted,  though  a  demand  was  actually  made  on  a  clerk  of  the  maker.  In  Helme  v. 
Middleton,  14  La.  Ann.  484,  a  firm  on  whom  a  draft  had  been  drawn  had  dissolved  prioi 
to  the  maturity  of  the  draft,  leaving  no  place  of  business,  nor  could  they  be  found  when 
the  draft  matured.  The  drawer  was  held.  We  have  already  seen,  that,  where  either  of 
the  partners  could  have  been  found,  by  the  use  of  due  diligence,  the  holder  would  have 
been  bound  to  present  the  draft  to  him.  Supra,  p.  448,  note  y.  See  Galpin  v.  Hard,  3 
Me  Cord,  394. 

(e)  Moore  v.  Coffield,  1  Dev.  247  ;  Beardsley,  J.,  Taylor  v.  Snyder,  3  Denio,  145, 1.51. 

( /■)  Whittier  v.  Graffam,  3  Greenl.  82  ;  Dennie  v.  Walker,  7  N.  H  199.  See  Bel- 
lievre  v-  Biid,  16  Mart-  La.  186. 

((/)  In  Anonymous,  1  Ld.  Raym.  743,  it  is  said  that  "  The  custom  of  merchants  is, 
that  if  B,  upon  whom  a  bill  of  exchange  is  drawn,  absconds  before  the  day  of  payment, 
the  man  to  whom  it  is  payable  may  protest  it,  to  have  better  security  for  the  payment, 
and  to  give  notice  to  the  drawer  of  tlie  absconding  of  B  ;  and  after  time  of  payment 
is  incurred,  then  it  ought  to  be  protested  for  non-payment  the  same  day  of  payment 
or  after  it.  But  no  protest  for  non-payment  can  be  before  the  day  that  it  is  pay- 
able. Proved  by  merchants  at  Guildhall,  Trin.  6  W.  &  M.,  before  Treby,  Chief  Jus- 
tice. And  the  plaintiff  was  nonsuit,  because  he  had  declared  upon  a  custom  to  pro- 
test for  non-payment  before  the  day  of  payment."  In  Putnam  v.  Sullivan,  4  Mass.  45, 
Parsons,  C.  J.  said  :  "  The  first  objection  made  by  the  defendants  is  founded  on  a  want 
of  a  demand  of  payment  on  the  promisor  when  tiic  note  was  payable.  As  to  this  ob- 
jection, the  facts  are,  that,  on  the  first  day  of  grace,  which  was  the  last  day  of  February, 
notice  was  left  at  the  lodgings  of  the  promisor,  that  the  note  would  be  due  on  the  last 
day  of  grace,  with  a  request  to  pay  it  then  ;  but  it  also  appears  tliat  before  that  time  it 
was  known  to  the  parties  that  he  had  absconded,  and  when  the  note  was  payable 
was  not  to  be  found.  The  condition  on  which  an  indorser  of  a  note  is  holden  is,  that 
the  indorsee  shall  present  the  note  to  the  promisor  when  due,  and  demand  payment  of 
it,  if  it  can  be  done  by  using  due  diligence.  Now  it  appears  that  when  the  note  in  this 
case  was  due,  it  could  not  be  presented  to  the  promisor  for  payment,  and  that  there  was 
no  neglect  in  the  indorsees.  We  are  all,  therefore,  satisfied  that  the  indorsers  are  holden 
on  their  indorsement  in  this  case,  notwithstanding  there  was  no  demand  on  the  prom- 
isor." In  Widgery  v.  Munroe,  6  Mass.  449,  the  maker  before  the  note  fell  due  "  stopped 
payment  and  went  out  of  the  country,"  and  the  court  held  that  the  plaintiff  was  excused 
Vol.  I.— 2  D 


450  XOTES   AND   BILLS.  [CH.  XL 

that,  if  the  maker  of  a  note  absconds,  leaving  no  visible  property 
which  can  be  attached,  a  want  of  demand  or  of  inqniry  for  him 
is  not  thereby  excused  so  as  to  charge  an  indorser,  though  the 
latter  knew  of  such  absconding.  (/«) 

If  the  maker  removes  from  the  place  in  which  he  resided  and 
transacted  business  to  another  jurisdiction  between  the  time  a 
note  is  made  and  its  maturity,  the  holder  will  not  be  obliged  to 
go  out  of  his  own  State  in  order  to  make  a  demand  either  on  the 
maker  personally  or  at  his  new  place  of  business  or  of  resi- 
dence, (i)     Whether  it  will  be  necessary  for  the  holder  to  use  due 


from  demanding  payment  of  him.  In  Hale  v.  Burr,  12  Mass.  89,  Parker,  C.  J.  said: 
"It  is  well  settled,  that,  if  the  promisor  abscond  before  the  day  of  payment,  or  has  con- 
cealed himself,  the  necessity  of  a  demand  is  taken  away.  Due  diligence  to  find  him  is 
all  that  is  required  in  the  latter  case ;  and  in  the  case  of  absconding,  even  that  is  not 
necessary."  There  are  also  dicta  to  the  same  effect  in  Shaw  v.  Reed,  12  Pick.  132 ; 
and  in  Gilbert  v.  Dennis,  3  Met.  495,  499,  per  Shaw,  C.  J.  The  point  was  decided  in 
Lehman  v.  Jones,  1  Watts  &  S.  126  ;  Reid  v.  Morrison,  2  id.  401.  Sec  Duncan  r. 
M'CuUough,  4  S.  &  R.  480;  Wolfe  v.  Jewett,  10  La.  383  ;  Galpin  v.  Hard,  3  McCord, 
394.  In  Gillespie  v.  Hannahan,  4  id.  .503,  Johnson,  J.  said  :  "  It  seems  to  be  generally 
agreed,  that  the  absconding  of  the  maker  of  a  note,  or  the  acceptor  of  a  bill  of  exchange, 
will  excuse  the  holder  from  making  a  demand."  See  Gist  v.  Ly brand,  3  Ohio,  307.  In 
Taylor  v.  Snyder,  3  Dcnio,  145,  Beardsley,  J.  lays  it  down  as  undoubted  law,  that  ab- 
sconding is  an  excuse;  and  in  Spies  v.  Gilmore,  1  Comst.  321,  his  remarks  arc  cited 
with  approbaiion  hy  Jewett,  C.  J.     See  also  Bruce  v.  Lytic,  13  Barb.  163. 

(h)  Pierce  v.  Gate,  12  Gush.  190,  Shaw,  C.  J.  said  :  "  The  court  instructed  the  jury 
that,  if  the  maker  had  absconded,  leaving  no  visible  property  subject  to  attachment,  no 
presentment  of  the  note  to  the  maker,  or  demand  at  his  dwelling-liouse,  or  other  in- 
quiry for  him,  was  necessary The  court  are  of  opinion  that  this  direction  is  not 

sustained  by  the  rules  of  law,  and  that  it  is  incorrect.  We  arc  aware  that  in  some  of 
the  earlier  cases  in  Massachusetts  it  was  held  that  proof  that  the  maker  had  absconded, 
or  failed,  and  become  insolvent,  so  that  a  demand  would  be  unavailing,  would  be  an 
excuse  for  want  of  presentment.  But  it  has  been  decided,  on  consideration,  and  upon 
principle,  that  the  obligation  of  an  indorser  is  conditional ;  that  is,  tiiat  he  will  be 
answerable  if,  at  the  maturity  of  the  note,  tiic  holder  will  present  it  to  the  maker  for 
payment ;  and  if,  thereupon,  the  maker  shall  neglect  or  refuse  to  pay  it,  and  the  holder 
will  give  seasonable  notice  to  the  indorser,  he  will  pay  it  himself.  These  are  the  con- 
ditions of  his  liability.  The  holder,  therefore,  to  charge  the  indorser,  must  show  a  com- 
pliance with  these  conditions,  or  that  proper  means  have  been  taken  to  effect  a  com- 
pliance with  them,  unless  indeed  he  can  prove  a  waiver  of  them  by  the  indorser.  And 
this,  wc  think,  is  the  rule  as  now  settled.  If  tiie  maker  has  left  the  Stale,  the  holder 
must  demand  payment  at  his  actual  or  last  place  of  abode,  or  of  business,  within  the 
Slate."  It  is  not  stated  in  the  report,  but  it  is  a  fact  personally  known  to  us,  that  this 
point  was  not  argued,  nor  indeed  raised,  by  counsel  in  this  case.  The  defence  was  based 
upon  other  grounds,  because  it  was  sup|)osed  tiiat  the  decisions  overruled  by  this  case, 
and  the  practice  under  them,  had  estal)lished  the  law. 

(i)  In  M'Gruder  v.  Bank  of  Washington,  9  Wheat.  598,  the  maksr  removed  from 
the  District  of  Columbia  to  Maryland  ten  days  before  the  note  in  suit  matured,  with- 


CH.  XI.J   EXCUSES  FOR  ABSENCE  OE  DEMAND  OF  PAYMENT.     451 

diligence  to  'find  the  maker's  last  and  usual  place  of  business  or 
of  residence  in  the  place  which  he  has  left  is  unsettled,  che  au- 
thorities being  conflicting. (y)  But  wo  consider  that  it  is  more  in 
accordance  with  the  rules  of  law  respecting  demand  to  require 


out  the  knowledge  of  the  holder.  The  notary  certified  that  he  went  to  the  place  where 
ihc  maker  last  resided  in  order  to  demand  payment,  but  not  finding  him  there,  and  be- 
ing ignorant  of  his  place  of  residence,  returned  the  note  under  protest.  Held  sufficient 
to  charge  an  indorscr.  Wheeler  v.  Field,  6  Met.  290,  where  the  maker  had  left  New 
York  for  Illinois  ;  Anderson  v.  Drake,  14  Johns.  114,  where  the  maker  had  removed 
from  Albany  to  Canada,  and  a  demand  at  the  former  place  was  held  sufficient  to  charge 
an  indorscr  ;  Central  Bank  v.  Allen,  16  Maine,  41,  where  the  maker  had  removed  from 
Portland  to  the  Western  country,  and  a  written  demand  at  his  former  residence  was  held 
sufficient;  Reid  r.  Morrison,  2  Watts  &  S.  401,  where  the  maker  had  left  Ireland  and 
gone  to  America;  Gillespie  i\  Hajmahan,  4  McCord,  503,  where  the  maker  left  Charles- 
ton, and  was  supposed  to  have  gone  to  Philadelphia ;  Galpin  ?•.  Hard,  3  id.  394  ; 
Gist  V.  Lybrand,  3  Ohio,  307  ;  Widgery  v.  Munroe,  6  Mass.  449 ;  Beardslei/,  J.,  Tay- 
lor V.  Snyder,  3  Denio,  145.     See  the  cases  cited  supra,  p.  449,  note/; 

(j)  In  Wheeler  v.  Field,  6  Met.  290,  Wilde,  J.  said:  "The  second  ground  of  ex- 
ception is,  that  the  demand  should  have  been  made  at  the  maker's  last  place  of  resi- 
dence in  the  city  of  New  York,  unless  it  could  be  clearly  proved  that  the  plaintiffs  had 
made  reasonable  inquiries,  unsuccessfully,  to  ascertain  the  same.  And  on  this  ground 
we  are  of  opinion  that  the  exception  is  well  sustained.  The  genei'al  rule  is,  that  to 
charge  an  indorscr  of  a  promissory  note,  a  personal  demand  on  the  maker  is  to  be 
made  ;  or  if  he  be  not  found  where  he  ought  to  be  found,  and  no  place  of  payment  is 
specified,  a  demand  at  his  place  of  abode  or  place  of  business  is  sufficient.  If  he  re- 
moves into  a  foreign  country,  or  another  State,  a  demand  at  his  new  place  of  residence 

is  not  required The  demajid  should  have  been  made  at  the  maker's  last  place  of 

residence  in  New  Y'ork,  and  the  plaintiffs  were  bound  to  make  diligent  inquiries  to  ascer- 
tain it.  This  we  consider  indispensable  ;  and  as  the  jury  were  not  so  instructed,  but,  on 
the  contrary,  were  instructed  that  no  demand,  under  the  circumstances  stated,  was  ne- 
cessary, the  defendant  is  entitled  to  a  new  trial,  notwithstanding  the  finding  of  the  jury 
that  the  notary  had  used  due  diligence  in  this  respect."  In  Galpin  i'.  Hard,  3  McCord, 
394,  the  maker  had  removed,  and  it  did  not  appear  where  he  had  gone.  Johnson,  J.  said  : 
"  I  take  it,  it  is  a  settled  rule,  that  when  the  maker  of  a  promissory  note  has  removed  from 
the  place  where  the  note  represents  him  to  reside,  and,  for  the  same  reason,  where  he  did 
reside  at  the  time  the  note  was  made,  the  holder  is  bound  to  use  every  reasonable  en- 
deavor to  find  out  where  he  has  removed,  and  if  he  succeed,  present  it  for  payment." 
But  in  Gist  v.  Lybrand,  3  Ohio,  307,  the  court  say :  "  Whether  a  demand  should  be 
made  at  any  other  place  is  not  made  a  point,  or  adjudicated  upon,  in  that  case  (M'Gru- 
der  z?.  Bank  of  Washington,  9  Wheat.  598).  But  it  seems  to  us  a  clear  consequence 
of  the  decision,  that  such  demand  is  unnecessary.  The  fact  of  removal  commits  the 
indorser,  and  dispenses  with  all  demand,  unless  a  particular  place  be  appointed  for  the 
payment  of  the  note  in  the  note  itself."  It  is  not  clear  from  the  case  itself  but  that  the 
maker  had  absconded.  If  so,  a  diflfcrent  rule  might  apply.  The  declaration  averred 
that  diligent  search  had  been  made  for  the  maker,  but  he  could  not  be  found ;  also, 
that  he  had  secretly  absconded.  So,  in  Reid  v.  Morrison,  2  Watts  &  S.  201,  Sergeant, 
T.  said  •  "  It  was  therefore  impossible  to  make  a  presentment  to  the  maker  in  Ireland, 
and  it  would  seem  the  holder  was  not  bound  to  search  for  him  in  a  foreign  country ;  but 
his  removal  dispensed  with  any  further  eflbrt,  and  made  the  indorser,  ipso  facto,  liable 


452  NOTES   AND   BILLS.  [CH.  XI. 

that  thvi  holder  should  endeavor  to  find  this  last  place  of  business 
or  of  abode,  and  present  the  note  there.  Our  reason  for  this  is, 
that  it  is  no  unfair  or  unreasonable  presumption  that  the  maker 
left,  at  his  place  of  business  within  the  State,  means  and  arrange- 
ments for  attending  to  the  business  which  he  began  there  and 
left  unfinished  there.  The  different  States  of  this  country  are 
considered  as  foreign  to  each  other  in  this  respect. (^) 

An  opinion  seems  to  have  been  intimated  that  the  contiguity 
of  the  old  and  new  places  of  residence  would  have  some  effect 
on  the  question  of  excuse,  as  relathig  to  this  point ;  thus,  if  the 
maker  acquires  a  new  domicil  in  a  town  adjoining  liis  former 
place  of  residence,  but  in  a  different  State,  that  the  rule  respect- 
ing due  diligence  would  require  a  demand  at  the  latter  place. (/) 
But  this  view  cannot  be  sustained,  we  think,  without  producing 
confusion  and  obscurity  in  the  law,  where  precision  and  certainty 
are  of  more  importance  than  abstract  justice,  (w)      When  the 

without  it."  In  this  case  the  maker  had  absconded.  In  Gillespie  v.  Hannalian,  4  Mc- 
Cord,  503,  diligent  inquiry  was  made  for  the  maker,  and  it  was  ascertained  that  he  had 
no  place  of  residence  in  the  city  in  which  he  made  the  note.  The  judge,  at  Nisi  Prius, 
hffld  this  to  be  insufficient ;  but  his  ruling  was  reversed.  The  point  now  under  consid« 
eration  does  not  seem  to  have  been  dwelt  upon.  In  Dennie  v.  Walker,  7  N.  II.  199, 
the  rule  is  stated  by  Upham,  J.,  as  follows  :  "  A  removal  without  the  bounds  of  the 
government,  after  the  making  of  a  note  and  before  it  becomes  due,  and  where  no  place 
of  payment  of  the  note  is  specified,  renders  a  demand  upon  the  maker  unnecessary  ;  but 
this  is  an  exception  to  the  general  rule,  and  must  be  construed  strictly.  Anything  less 
than  an  actual  change  of  residence,  by  removal  without  the  State,  would  leave  the  rule 
too  uncertain.  In  case  of  mere  absence  from  one's  place  of  residence,  it  is  immaterial 
whether  it  is  for  a  longer  or  a  shorter  period.  If  the  maker  has  a  known  domicil  or 
place  of  business  within  the  State,  a  demand  of  payment  at  such  place  is  essential  in 
order  to  charge  the  indorser." 

(k)  Gillespie  v.  Hannahan,  4  McCord,  503.    See  the  cases  cited  supra,  p.  451,  notc^. 

(/)    Wilde,  J.,  Wheeler  v.  Field,  6  Met.  290. 

(m)  In  Gillespie  v  Hannahan,  4  McCord,  503,  Johnson,  J.  said,  in  substance  :  In  the 
case  of  Widgery  v.  Munroe,  6  Mass.  449,  the  court  say,  that  if,  on  tiie  day  when  the  note 
became  due,  the  maker  being  then  out  of  the  country,  the  plaintiff  was  excused  from 
demanding  payment  of  him,  and  it  might  seem  unreasonable  that,  when  lie  had  only 
removed  across  an  imaginary  line  separating  two  countries,  that  it  should  be  dispensed 
with.  But  it  is  equally  unreasonable  that  the  holder  should  be  compelled  to  follow 
him  to  St.  Petersburg.  The  necessity  of  a  certain  rule  leaves  no  alternative  but  the 
adoption  of  one  or  the  other  of  these  extremes.  There  can  be  no  comjjromise  between 
theni  that  will  not  work  injustice.  So  in  M'Grudcr  v.  Bank  of  Washington,  9  Wheat. 
598,  wlierc  the  new  place  of  residence  was  but  nine  miles  from  the  old  one ;  and 
yet  it  was  held  that  the  liolder  was  not  obliged  to  present  the  note  at  the  latter 
place.  Johnson,  J.  said :  "  We  think  that  reason  and  convenience  are  in  favor  of 
sustaining  the  doctrine  that  such  a  removal  is  an  excuse  from  an  actual  demand. 
Precision  and  certainty  are  often  of  more  importance  to  the  rules  of  law  than  tbnir 


CH.  XI.]      EXCUSES   FOR   ABSENCE   OF   DEMAND   OF   PAYMENT.  45R 

removal  is  simply  to  another  place  within  the  same  jurisdiction,, 
due  diligence  must  be  used  to  find  the  maker  at  the  place  lo 
which  he  has  removed. (w) 

Wo  have  already  alluded  to  the  circumstance  of  the  note  being 
dated  at  a  particular  place,  and  the  presumption  to  be  drawn 
therefrom.  We  should  add,  that  neither  this  fact  nor  any  other 
excuses  the  want  of  due  diligence  ;  it  only  raises  (lie  question. 
What  is  in  that  case  due  diligence  ?  And  we  incline  to  think  the 
answer  should  be,  that  this  date  does  not  excuse  a  holder  from 
demanding  payment  of  the  maker  elsewhere,  if  within  the  State, 
and  the  holder  knows,  or  ought  to  know,  where  he  is ;  but  that 
a  holder  is  not  bound  to  make  more  inquiry  than  within  that 
town,  unless  there  be  something  which  tells  him  that  by  going 
elsewhere  witiiin  the  State  he  will  find  him. 

Where  the  maker,  at  the  time  of  signing  the  note,  lives  in 
another  State  from  the  one  in  which  the  note  is  dated  and  deliv- 
ered, and  in  which  the  holder  lives,  a  different  question  is  pre- 
sented. Where  the  party  who  receives  a  note  under  such  cir- 
cumstances knows,  when  he  takes  it,  where  the  maker  lives,  and 

abstract  justice.  On  this  point  there  is  no  other  rule,  that  can  be  laid  down,  which  will 
not  leave  too  much  latitude  as  to  place  and  distance.  Besides  which,  it  is  consistent 
with  analogry  to  other  cases,  that  the  indorser  should  stand  committed,  in  this  respect, 
by  the  conduct  of  the  maker.  For  his  absconding,  or  removal  out  of  the  kingdom, 
the  indorser  is  held  in  England  to  stand  committed  ;  and  although  from  the  contiguity 
and,  in  some  instances,  reduced  size  of  the  States,  and  their  union  under  the  general  gov- 
ernment, the  analogy  is  not  perfect,  yet  it  is  obvious  that  a  removal  from  the  seaboard 
to  the  frontier  States,  or  vice  versa,  would  be  attended  with  all  the  hardships  to  a  holder, 
especially  one  of  the  same  State  with  the  maker,  that  could  result  from  crossing  the 
British  Channel." 

(n)  Anderson  r.  Drake,  14  Johns.  114,  where  the  maker  had  removed  from  New 
York  to  Kingston,  both  places  being  in  the  State  of  New  York,  Thompson,  C.  J.  said  : 
"  I  am  inclined  to  think  that  where  a  note  is  not  made  payable  at  any  particular  place, 
and  the  maker  has  a  known  and  permanent  residence  within  the  State,  the  holder  is 
bound  to  make  a  demand  at  such  residence,  in  order  to  charge  the  indorser.  Whoever 
takes  such  note  is  presumed  to  have  made  inquiry  for  the  residence  of  the  maker,  in 
order  to  know  where  to  demand  payment,  and  to  assume  upon  himself  all  the  incon- 
venience of  making  such  demand,  and  the  risk  of  the  maker's  removing  to  any  other 
^lace  before  the  note  fiilis  due.  As  the  demurrer,  therefore,  in  this  case  admits  the  per- 
manent residence  of  the  maker  to  have  been  at  Kingston  when  the  note  fell  due,  and 
that  known  to  the  plaintiff,  he  was  bound  to  demand  payment  of  the  note  at  that 
place ;  and  not  having  done  so,  the  indorser  is  discharged."  La.  Ins.  Co.  v.  Sham- 
burgh,  14  Mart.  La.  .511,  where  the  maker  had  removed  from  New  Orleans  to  Plaque- 
mine  ;  Bellievre  v.  Bird,  16  id.  186.  See  Gillespie  v.  Hannahan,  4  McCord,  .503; 
Wilde,  J.,  Wheeler  v.  Field,  6  Met.  290 ;  Sergeant,  J.,  Reid  v.  Morrison,  2  Watts  & 
S.  401. 


454  NOTES   AKD   BILLS.  [CH.  XI. 

lias  s,ufllcient  time  before  the  maturity  of  the  note  withm  which 
to  cause  a  proper  demand  to  be  made  upon  the  maker,  it 
would  seem  to  follow  that  he  should  be  considered  as  takina: 
the  risk  of  a  proper  presentment  in  the  State  where  the  prom- 
isor resides.  We  think  also  that  it  follows  from  the  general  prin- 
ciples relating  to  the  contract  of  indorsement,  that  due  diligence 
would  require  a  demand  at  the  place  in  which  the  maker  lives,  (o) 


(o)  Taylor  *;.  Snyder,  3  Denio,  14.5.  The  facts  of  the  case  were,  that  the  promisor, 
a  resident  of  Florida,  made  and  dated  the  note  in  Troy,  N.  Y.  The  holder  knew  this 
fact  as  early  as  a  month  or  two  before  the  note  matured.  The  indorser  also  knew  it  at 
the  lime  of  indorsement,  but  no  stress  is  laid  upon  this  circumstance.  The  demand 
was  made  on  the  indorser  at  Troy,  and  it  was  held  insufBcient.  Beardsley,  J.,  in  a  very 
able  and  elaborate  decision,  after  stating  that  the  fact  that  the  note  was  dated  at  Troy 
did  not  make  it  payable  there ;  and  reviewing  the  cases  and  law  on  the  subject  of 
excuse,  saying  that  the  excuses  were  exceptions  to  the  general  rule,  which  must  bo 
construed  strictly,  continued  :  "  We  arc,  then,  to  inquire  whether  these  exceptions  arc 
to  be  multiplied,  and  extended  to  a  case  where  no  change  in  the  condition  of  either 
party  has  taken  place,  where  the  maker,  when  the  note  was  made  and  indorsed,  had  a 
known  residence  in  another  State,  and  which  had  remained  unchanged  at  the  maturity 
of  the  note.  It  is  palpable  that  this  exception,  if  made,  must  be  placed  on  some  new 
principle  ;  it  cannot  be  allowed  on  the  ground  which  upholds  the  others.  The  facts  iu 
this  case  are  unchanged,  and  as  the  reason  for  making  an  exception  does  not  exist, 
the  exception  itself  siiould  not  be  allowed.  Unless,  tlierefore,  the  general  position  is 
true,  that  one  who  indorses  for  a  maker  who  lives  in  another  State  may  be  held  liable 
without  any  demand  being  made  on  tiie  maker,  I  tliink  tlie  defendant  was  not  liable  in 
the  case  at  bar.  And  if  any  such  general  rule  of  law  as  I  have  stated  exists,  it  cer 
tainly  may  be  shown  ;  but  that  it  has  no  existence  is,  as  I  believe,  not  only  according  tc 
the  universal  understanding  amongst  commercial  men,  but  also  according  to  the  settled 
course  of  business  in  tiie  commercial  world.  The  indorsement  of  a  note  is  an  order  to 
the  maker  to  pay  the  amount  to  the  indorsee  or  holder,  as  is  specified  and  agreed  in 
the  note,  and  an  engagement  by  the  indorser,  that  if  the  note  is  duly  demanded  of  the 
maker,  and  not  paid,  or  if  it  shall  be  found  impracticable  to  make  a  demand,  the  in- 
dorser will  himself,  on  receiving  due  notice,  pay  the  amount  to  the  indorsee  or  holder. 
Now,  where  such  an  order  is  drawn  upon  a  maker  who  resides  in  another  State,  and 
which  is  well  known  to  the  person  in  whose  (iivor  the  order  is  drawn,  upon  what  prin- 
ciple can  it  be  said  that  a  demand  of  the  maker  is  unnecessary  ?  The  indorsee  vol- 
untarily consents  to  take  such  an  order,  and  why  should  he  not  perform  the  condition 
on  which  the  ultimate  liability  of  the  indorser  depends  ?  I  confess  I  sec  no  reason 
why  lie  should  not.  Here  is  no  mistake,  or  misapprehension  of  fact,  at  the  time  tlio 
indorsement  is  made.  The  indorsee  knows  where  the  maker  resides,  and  that  it  is  in 
another-  State.  He  knows  that,  by  law,  unless  tlic  intervention  of  a  State  line  makes  a 
difference,  the  maker  must  be  sought  where  lie  resides,  and  the  demand  must  i)e  made 
there.  When  the  time  for  payment  arrives,  the  maker  is  still  at  his  former  residence  ; 
the  farts  of  tlie  case  are  precisely  as  they  were  when  the  order  was  drawn  Why,  in 
such  case,  should  the  State  line  make  a  dilference  in  the  construction  and  icgnl  cHTccl 
of  this  contriict  of  the  indorser?  It  was  fairly  entered  into  between  tlie  jjarties  ;  let  it 
then  be  fairly  observed  and  performed  by  them.  I  can  well  understand  why  such  an 
order,  made  by  an  indorser  upon  tiie  maker  of  a  note,  tlicn  rvsklimj  within  t/iis  Slate,  but 


CII.  XI.]       EXCUSES   FOR   ABSENCE    OF   DEMAND    OF   PAYMENT.  45? 

But  it  will  be  seen  from  the  authorities  cited  in  the  note,  that 
this  view  is  not  universally  adopted. (/>) 

The  same  doctrine  has  been  held  where  the  promisor  lived  in 


who  removes  into  another  State  before  the  note  falls  due,  should  receive  a  different 
constrjiclion,  and  that  it  would  be  unreasonable  to  require  the  holder  to  follow  the 
maker  to  his  new  residence,  in  order  to  demand  payment.  Here  a  new  and  unlooked- 
for  event  has  occurred,  which,  like  the  absconding  of  a  maker,  or  an  inaliility  to  dis- 
cover his  residence,  may  very  reasonably  be  held  to  excuse  a  demand.  In  these 
respects,  the  indorser  should  be  held  to  stand  committed  by  the  act  of  the  maker.  But 
where  the  facts  in  reference  to  whicli  the  parties  contracted  were  fully  known  to  them, 
and  are  in  no  respect  changed,  I  am  unable  to  discover  any  principle  which  will  excuse 
the  maker  from  making  a  demand,  or  using  proper  diligence  to  make  a  demand,  as  in 
ordinary  cases.  The  intervention  of  a  State  line  has,  in  my  opinion,  no  possible  bearing 
on  the  question."  Bank  of  Orleans  v.  Whittemore,  Superior  Ct.  Mass.,  20  Law  Rep. 
3.33,  where  the  note  was  made  and  dated  at  Boston,  and  the  maker  resided  in  Newbern, 
N.  C.    This  case  was  affirmed  in  the  Supreme  Court,  12  Gray,  Burrows  r.  Han- 

ncgan,  1  McLean,  309  In  this  case,  the  maker  lived  in  Newport,  Indiana,  and  the  noto 
was  made  and  dated  at  Cincinnati.  A  demand  at  the  latter  place  was  held  insufficient 
It  will  be  observed  that  nothing  is  here  said  about  the  knowledge  of  the  maker's  residence 
by  the  holder.    In  Smith  v.  Philbrick,  12  Gray,  the  maker,  two  years  before  the  note, 

which  was  payable  at  three  months,  was  made,  removed  from  Boston,  where  he  had 
lived  and  transacted  business,  to  Port  Lavacca,  Texas,  where  he  resided  and  conducted 
his  business  when  the  note  matured.  The  note  was  made  and  dated  at  Boston,  between 
which  place  and  Port  Lavacca  the  mail  passed  in  twelve  days.  The  notary  certified 
that  he  went  with  the  note  to  the  maker's  place  of  business  in  Boston,  and  finding  no 
one  there  to  pay  the  note,  protested  the  same.  Held,  that  a  personal  demand  at  Port 
Lavacca  was  not  necessary,  unless  the  holder  proved  affirmatively  that  the  holder  of 
the  noie,  at  tiie  time  it  became  due,  knew  of  the  maker's  residence ;  that  all  tliat  was 
required  was  the  exercise  of  duo  diligence  to  make  a  demand  in  Boston,  and  that  such 
had  been  used  in  this  case.     Sed  qucere.     See  infra,  p.  4.59,  note  c. 

(p)  In  Story  on  Prom.  Notes,  ^  236,  it  is  said  ;  "  It  seems  also  that,  if  the  maker 
of  a  promissory  note  resides  and  has  his  domicil  in  one  State,  and  actually  dates, 
and  makes,  and  delivers  a  promissory  note  in  another  State,  it  will  be  sufficient  for  the 
holder  to  demand  payment  thereof  at  the  place  where  it  is  dated,  if  the  maker  cannot 
personally,  upon  reasonable  inquiries,  be  found  within  the  State,  and  has  no  knf)wn 
place  of  business  there."  The  autiiority  which  the  learned  author  cites  is  He]jburn  v 
Toledano,  10  Mart.  La.  643.  It  is  not  clear  from  the  case  whether  the  maker  lived  in 
a  different  State  from  the  one  in  whicii  the  holder  resided,  or  removed  after  making  the 
note.  Nor  does  it  appear  that  the  indorsee  knew  where  the  maker  lived.  Porter,  J. 
said  :  "  Tiie  statement  of  fiicts  shows  that  the  note  was  dated  in  New  Orleans,  but  not 
made  payable  there,  and  that  the  drawer  resided  in  Kentucky  at  the  time  of  the  pro- 
test, and  does  so  now.  The  only  question  which  this  case  presents  is,  whether  the 
liolder  of  the  note  was  obliged  to  go  out  of  tlie  State  to  demand  payment.  There 
is  some  difficulty  as  to  the  place  where  demand  is  to  be  made,  when  the  maker  of 
&  note  or  acceptor  of  a  bill  has  been  a  resident  of  the  State,  and  before  the  time  of 
payment  has  changed  his  domicil ;  but  if  he  lives  in  another  country,  the  indorsees 
cannot  be  presumed  to  know  his  residence,  and  all  that  the  law  requires  of  the  holder 
5s  due  diligence  at  that  place  where  the  note  is  drawn."  It  will  be  seen  that  the  learned 
judge  cites,  as  an  authority,  the  case  of  Anderson  v.  Drake,  14  Johns.  114,  supra,  p. 


4nd  NOTES   AXD   BILLS.  [CH.  XL 

a  different  country  from  that  in  which  the  holder  resided  at  the 
time  the  note  was  indorsed  to  him.(<7) 

It  seems  now  to  be  well  settled  that  mere  distance  is  no  excuse 
for  non-presentment,(r)  although  there  are  opinions  to  be  found 
in  some  of  the  earlier  reports  to  the  effect  that  the  holder  may 
wait,  on  the  day  the  note  falls  due,  for  the  maker  to  come  and 
pay ;  and  if  the  note  is  dishonored,  that  a  reasonable  time  will 
be  given  within  which  to  cause  a  proper  demand  to  be  made.(s) 

But  distance  may  have  some  effect  in  another  point  of  view. 
Thus,  where  an  indorser  transfers  a  note  to  the  holder  so  soon 
l)efore  maturity  that  the  former  must  know  the  impossibility  of 
the  demand  being  made  at  the  very  day  the  note  falls  due,  we 
think  that  this  indorser,  with  reference  to  his  immediate  indorsee, 
would  be  considered  as  having  waived  his  strict  right  to  require 
a  demand  at  maturity.  (^)     But  this  cannot  apply  to  the  prior 

453,  note  n,  wliich  is  a  case  of  removal  to  another  country.  In  M'Gruder  r.  Bank  of 
Washington,  9  Wheat.  598,  Johnson,  J.  said :  "  In  case  of  original  residence  in  a  State 
different  from  that  of  the  indorser  at  the  time  of  taking  the  paper,  there  can  be  no 
doubt."  He  then  goes  on  to  state,  that  the  question  of  removal  to  anotiier  State 
prior  to  maturity  is  a  difficult  one,  and  to  decide  that  a  demand  at  the  latter  place 
is  unnecessary.     It  is  not  easy  to  see  which  view  the  judge  adopted. 

(r/)  Spies  V.  Gilmore,  1  Comst.  321,  1  Barb.  158,  where  this  is  considered  as  a  legiti- 
mate conclusion  from  the  doctrine  laid  down  in  Taylor  v.  Snyder,  3  Denio,  145,  supra, 
p.  454,  note  o,  Gardiner,  J.  dissenting,  on  the  ground  that  "  Expediency  and  public  con- 
venience require  that  the  necessity  of  a  personal  demand  should  be  coniinod  to  cases 
where  the  maker  resides  within  the  States  or  Territories  of  the  Union.  It  is  ditlicult  to 
prescribe  any  other  rule  wiiich  will  not  leave  too  much  latitude  as  to  place  and  dis- 
tance, and  of  course  be  fluctuating  where  it  should  be  certain.  Instances  will  readily 
occur  to  every  one  in  which  making  a  demand  in  a  foreign  country  would  be  attended 
with  little  inconvenience,  and  others  in  which  it  would  be  impracticable.  Between 
these  extremes  there  is  a  wide  interval  whidi  would  be  opened  to  litigation,  which  sound 
policy  requires  to  be  closed." 

(r)  Johnson,  J.,  M'Gruder  i>.  Bank  of  Washington,  9  Wheat.  598,  601,  note ;  Bank  of 
Orleans  v.  Wliittemore,  supra,  p.  455,  note  o.  See  also  the  cases  cited  supra,  pp.  450  -  455. 

(s)  Haddock  v.  Murray,  1  N.  II.  HO.  See  Freeman  v.  Boynton,  7  Mass.  483  ;  Par- 
ker, C.  J.,  Barker  v.  Parker,  6  Pick.  80. 

(/)  Abbott,  J.,  Bank  of  Orleans  v.  Whittemore,  20  Law  Rep.  333  ;  Story  on  Prom. 
Notes,  4  265  But  in  Chitty  on  Bills,  10th  Lond.  ed.,  p.  266,  it  is  said  :  "  The  circum- 
stance of  the  holiler  having  received  a  bill  very  near  the  time  of  its  becoming  due,  is  no 
«xcusc  for  neglect  to  present  it  for  payment  at  maturity  ;  for  he  might  renounce  it  if  ho 
did  not  choose  to  undertake  that  duty,  and  send  the  bill  back  to  the  party  from  whom 
he  received  it ;  but  if  he  keep  it,  he  is  bound  to  use  reasonable  diligence  in  presenting 
it."  Wc  think  that  this  should  be  (jualified  according  to  the  statement  in  the  text.  It 
will  be  observed,  that  in  the  case  |)Ut  the  indorser  himself  has  lost  Iiis  remedy  against 
any  prior  indorser,  unless  under  similar  circumstances  ;  and  the  effect  of  ♦he  indorse- 
ment would  |)rubably  be  the  same  as  if  the  note  were  indorsed  after  niatu'ity 


CH.  XI.]      EXCUSES   FOR  ABSENCE   OF  DEMAND   OF   PAYMENT.  457 

indorsers,  who  transferred  the  note  long  enough  before  it  fell  due 
to  have  a  proper  presentment  made.(M)  The  same  question  would 
occur  where  a  joint  note  is  indorsed,  the  indorser  knowing  that 
the  maivcrs  lived  so  far  apart  that  a  demand  on  both  could  not  be 
made  on  the  same  day.  Here  also  we  thhik  that  if  the  holder 
presents  the  note  to  one  when  it  falls  due,  and  to  the  others  as 
soon  as  he  reasonably  can,  he  has  done  all  that  duo  diligence  can 
require,  and  would  not  lose  his  claim  on  the  indorser. (?;) 

What  will  constitute  due  diligence  to  find  the  maker  cannot 
be  prescribed  by  any  fixed  rule  to  which  all  circumstances  must 
bend,  as  each  case  depends  necessarily,  in  a  great  degree,  upon 
its  own  peculiar  facts.  It  has  been  held,  that  if  the  holder  goes 
with  a  bill  within  reasonable  hours  to  the  house  to  which  it  is  di- 
rected, and  finds  the  door  closed,  he  is  entitled  to  protest  it  with- 
out any  further  inquiries  for  the  drawer  or  acceptor ;  (w)  and 
the  same  seems  to  have  been  held  with  reference  to  the  maker  of 
a  note  in  which  no  place  of  payment  is  specified. (.r)  But  we  think 
that  some  inquiry  should  still  be  made  for  the  payor ;  or  at  least 
that  this  is  the  safer  as  well  as  the  better  way.(//) 


(it)  Story  on  Prom.  Notes,  §  265. 

(v)  Abbot,  J.,  Bank  of  Orleans  v.  Whittemore,  20  Law  Rep.  333. 

(w)  nine  V.  Allely,  4  B.  &  Ad.  624.  But  in  this  case,  as  reported  1  Nov.  &  M.  433, 
it  would  seem  that  some  inquiry  was  made  for  the  acceptor.  See  Bu.xton  v.  Jones,  1 
Man.  &  G.  83,  1  Scott,  N.  K.  19.  In  Ogden  v.  Cowley,  2  Johns.  274,  some  inquiry 
was  made. 

(x)  Shed  V.  Brett,  1  Pick.  413.  In  this  case  the  noUiry  testified  that  he  made  dili- 
gent search  for  the  promisors,  but  could  not  find  either  of  them.  Parker,  C.  J.  said : 
"  And  the  question  is,  whether  going  to  their  place  of  business,  finding  it  shut,  no  per- 
son being  left  there  to  answer  any  inquiries,  is  due  diligence  We  put  out  of  the  case 
the  declaration  of  the  witness,  that  he  made  diligent  inquiry,  because  it  does  not  appear 
where  or  of  whom  he  inquired  ;  and  as  the  promisors  both  lived  in  Boston,  if  inquiry 
was  necessary,  it  would  hardly  seem  that  enough  was  made.  It  seems,  however,  by 
the  authorities,  that  what  was  done  was  sufficient,  provided  the  witness  went  to  the 
place  of  business  of  the  makers,  in  business  hours,  which  is  not  stated  in  his  testimony. 
And  if,  upon  further  application  to  the  notary,  he  is  not  able  to  state  this  fact,  a  new 
trial  m:iy  he  had,  or  the  plaintiflT  ought  to  become  nonsuit.  But  supposing  this  to  be 
with  the  plaintiff,  he  is  entitled  to  recover."  If  the  holder  had  done  all  that  due  dili- 
gence required,  then  the  fact  that  the  makers  had  removed  would  seem  to  be  immate- 
rial. But  the  law  is,  that  where  the  maker  has  removed  to  another  place  in  the  same 
State,  a  demand  at  the  last  place,  or  inquiries  to  find  it,  arc  indispensable.  It  is  diflS- 
cult  to  reconcile  this  case  with  the  general  rules  of  law  concerning  demand,  and  we 
ioubt  the  decision. 

(y)  In  Collins  v.  Butler,  2  Stra.  1087,  one  of  the  questions  was,  whether  the  plain- 
tiff had  shown  suflTvuent  by  proving  that  the  maker  shut  up  the  house  and  went  away 

VOL.  I.  39 


458  NOTES   AND    BILLS.  [CH.  XI. 

The  case  may,  perhaps,  be  different  where  a  note  or  bill  is  pay- 
able at  a  particular  place,  and  the  party  sought  to  be  charged  lias 
a  right  to  require  a  demand  at  the  place, (2)  because  a  demand 
auywhore  else  would  be  unavailing,  and  one  at  a  place  with 
closed  doors  might  be  considered  as  only  a  useless  ceremony. 

It  has  been  sometimes  said,  that  using  due  diligence  to  find  the 
maker  at  the  place  where  a  note  is  dated  will  satisfy  the  require- 
ments of  the  law  upon  the  subject  of  demand ;  (a)  but  if  this 
were  a  universal  rule,  it  would,  in  effect,  make  a  note  payable  at 
a  city  or  town  merely  because  dated  there,  which  is  contrary  to 
the  weight  of  authority,(6)  and  we  prefer  the  view  we  have  al- 
ready given. 

a  month  before  the  note  matured.  "  And  in  this  particular  case  Lee,  C.  J.  held  that 
the  plaintiff  had  not  gone  far  enough,  but  ought  to  show  that  he  had  inquired  after  tho 
drawer,  or  attempted  to  find  him  out."  If  the  mere  fact  that  the  house  is  shut  up  is 
sufficient,  there  would  seem  to  be  no  necessity  for  the  holder  to  go  there  at  all ;  and 
unless  this  is  necessary,  the  case  just  cited  is  in  conflict  with  Shed  v.  Brett,  1  Pick.  401, 
supra,  p.  457,  note  x.  In  Ellis  v.  Commercial  Bank,  7  How.  Miss.  294,  303,  Chiyton,  J. 
said  :  "  In  nearly  all  the  cases  which  we  have  been  able  to  find  on  this  point,  after  a 
very  diligent  search,  the  evidence  shows  that  inquiry  was  made  in  the  neighborhood 
for  the  maker,  or  acceptor,  when  he  was  not  found  at  his  dwelling  or  place  of  business, 
and  thus  an  excuse  for  want  of  personal  demand  is  furnished."  The  court,  however, 
refrained  from  deciding  the  i)oint,  because  it  was  not  necessary  to  the  case. 

(z)  In  Howe  v.  Bowes,  16  East,  112,  the  declaration  averred  that  the  defendant,  a 
maker  of  a  note  payable  at  the  Workington  Bank,  became  insolvent,  and  wholly  de- 
clined and  refused  to  pay  at  that  place.  The  evidence  was,  that  the  Workington  Bank 
was  closed,  and  no  payment  had  been  made  there  for  some  time  before  the  suit.  Tho 
plaintiff  obtained  a  verdict,  and  the  court  refused  to  grant  a  new  trial.  Lord  Ellevhor- 
ough,  C.  J.  said  :  "  As  it  is  not  disputed  that  the  banking-iiouse  was  shut  up,  and  that 
any  demand  of  payment  whicli  could  have  been  made  there  would  have  been  wholly 
inaudible,  that  is  substantially  a  refusal  to  pay  their  notes  to  all  the  world."  This 
judgment  was  reversed  in  the  Exchequer  Chamber,  5  Taunt.  30,  on  the  ground  that 
the  allegation  itself  was  insufficient. 

{a)  Bay,  J.,  Moodie  v.  Morrall,  3  Const.  R.  367,  said  :  "  Charleston,  being  the 
place  where  the  note  was  drawn  and  indorsed,  siiall  be  presumed  to  be  the  residence 
of  both  for  every  mercantile  purpose,  and  the  use  of  due  diligence  to  find  out  either  of 
them  there  will  answer  the  demands  of  the  law  upon  this  subject.  It  would  be  a  mon- 
strous inconvenience  and  embarrassment  to  commerce,  if  the  holder  of  a  bill  or  note 
was  obliged  to  travel  all  over  the  world  to  find  out  the  maker  or  indorser,  in  order  to 
give  him  notice  of  the  non-payment.  I  take  it,  therefore,  to  be  a  well-established  rule 
of  mercantile  law  at  this  day,  that  the  use  of  due  diligence,  in  the  place  or  city  where 
the  bill  is  drawn,  to  find  out  cither  maker  or  indorser,  is  all  that  is  requisite."  In  tho 
ca.se  itself,  however,  a  demand  was  made  at  the  house  of  the  maker,  on  his  wife,  who 
informed  the  notary  that  the  former  was  out  of  town ;  and  this  was  held  sufficient. 
Sec  III  |)l)urn  v.  Toleduno,  10  Mart.  La.  643. 

(/;)  Siijiid,  p.  441,  note  X.  See  also  tho  remarks  of  Johnson,  J.,  cited  supra,  p.  451, 
note  _;' ;  of  Tliompson,  C.  J.,  p.  453,  note  ;i. 


CH.  XI.]       EXCUSES   FOR   ABSENCE    OF   DEMAND    OF    PAYMENT.  459 

It  may  be  said  that  a  person  who  takes  a  note  is  under  some? 
obligation,  at  the  time  he  receives  it,  to  know  or  to  inquire 
where  the  maker  lives ;  and  if  so,  and  he  neglects  to  do  this, 
refraining  from  all  inquiry,  he  should  suffer  the  consequences  of 
not  being  able  to  make  a  regular  demand.  It  must  certainly  be 
true  that  the  holder  cannot  alter  the  terms  or  the  essential  prin- 
ciples of  the  contract  of  indorsement,  and  they  would  require  of 
him  at  least  as  much  as  ordinary  foresight  and  prudence  would 
seem  to  require. (c)  It  has  been  held  that  due  diligence  makes 
necessary  an  inquiry  of  the  indorsers  or  other  parties  to  the  note 
for  the  place  where  the  maker  may  be  found,  and  because  such 
inquiry  was  not  made,  the  indorsers  were  discharged. (c?)     The 


(c)  We  have  already  stated  our  opinion  to  be,  that  where  the  holder  knows  when  he 
takes  the  note  that  the  maker  lives  in  another  jurisdiction,  and  there  is  sufficient  time 
before  maturity  to  make  a  demand  on  the  maker,  such  a  demand  is  necessary.  The 
same  rule  should  apply,  we  think,  even  if  there  be  no  knowledge  of  such  residence, 
provided  there  were  sufficient  time  given  to  make  the  inquiries,  and  afterwards  a  de- 
mand.  For  tliis  reason  we  should  doubt  the  authority  of  Smith  r.  Philbrick,  supra, 
p.  455,  note  o. 

(c?)  In  Porter  v.  Judson,  1  Gray,  175,  the  certificate  recited  that  the  notary  went  "  to 
various  places,  making  diligent  inquiry  of  divers  persons  for  the  promisor,  but  could  not 
find  him,  nor  any  one  knowing  him,  nor  any  one  with  funds  for  the  payment  of  the  note." 
When  the  note  became  due,  the  maker  was  living  in  the  same  city  with  the  indorser ;  but 
prior  to  giving  the  note  he  had  resided  elsewhere.  Shaiv,  C.  J.  said  :  "  The  presumption 
is  strong,  not  to  say  violent,  that  his  home  and  place  of  business  were  known  to  the 

indorsers,  the  last  of  whom  indorsed  the  note  to  the  plaintiffs,  for  value From 

this  statement,  it  appears  that  the  notary  knew  the  places  of  business  of  the  indorsers, 
but  it  does  not  appear  that  he  inquired  of  them,  and  the  probability  is  that  he  did  not, 
because  if  he  had,  the  presumption  is  that  he  would  have  found  the  promisor."  In 
Wheeler  v.  Field,  6  Met.  290,  the  notary  took  the  note  to  the  office  of  the  third  in- 
dorser, to  inquire  for  the  maker  and  the  other  indorsers,  but  was  told  that  the  third  in- 
dorser was  out,  and  also  that  a  person  living  near  by  could  give  the  desired  information. 
This  person,  on  being  asked,  did  not  know  where  the  parties  lived.  The  notary  then 
protested  the  note.  It  was  held  tliat  the  third  indorser  was  discharged.  Wikle,  J.  said : 
"  It  cannot  be  doubted,  that,  if  inquiries  had  been  made  of  the  payee  or  the  other  in- 
dorsers, the  maker's  place  of  residence  might  have  been  ascertained."  In  Duncan  v. 
M'CuUough,  4  S.  &  R.  480,  it  was  held  that  an  indorser  was  not  obliged  to  tell  the  holder 
where  the  maker  was  to  be  found.  In  Packard  v.  Lyon,  5  Ducr,  82,  a  note  had  been 
deposited  in  a  bank  for  collection.  The  notary  inquired  of  the  bank  where  the  maker 
lived,  and  none  of  the  officers  could  tell  him.  The  directory  was  consulted,  but  the 
name  could  not  be  found  there.  The  notary  then  made  a  formal  demand  at  the  bank, 
and  on  refusal  to  pay,  protested  the  note.  Held,  that  due  diligence  had  not  been  used. 
Slosson,  J.  said  :  '"  It  may  be  exceedingly  inconvenient,  at  times,  to  find  the  place  of 
residence  of  the  maker  of  a  note ;  but  that  forms  no  excuse  for  the  want  of  the  knowl- 
edge, if  it  can  be  obtained.  It  was  gross  carelessness  in  the  holder  to  send  the  note  to 
the  bank  for  collection,  without  a  memorandum  indorsed  on  it,  or  accompanying  it,  to 


4t)0  ■  NOTES   AND   BILLS.  [CH.  XL 

reason  given  is,  tliat,  from  the  circumstances  of  the  case  itself, 
there  was  a  presumption  that  the  indorser  knew  where  the  maker 
was,  and  could  give  the  requisite  information  ;  where  this  rea- 
son exists,  there  can  be  doubt  of  the  rule ;  but  we  are  not  pre- 
pared to  say  that  the  law  would  always  presume  this  reason  and 
necessity  from  the  relation  of  the  parties. 

Want  of  presentment  at  maturity  is  excused  by  any  inevitable 
or  unavoidable  accident,  not  attributable  to  the  fault  of  the 
holder ;  for  this  would  bring  it  within  the  rule  which  excuses  a 
demand  whenever  it  is  morally  or  physically  impossible. (^) 

Among  the  circumstances  recognized  by  Mr.  Justice  Story  as 
constituting  an  excuse  are  the  following :  The  prevalence  of  a 
malignant  disease  which  suspends  the  ordinary  operations  of  busi- 
ness, and  which  would  make  it  dangerous  to  enter  the  infected 
district. (/)  The  presence  of  political  circumstances  amounting 
to  a  virtual  interruption  and  obstruction  of  the  ordinary  nego- 
tiations of  trade. (^'■)  The  breaking  out  of  war  between  the 
country  of  the  maker  and  that  of  the  holder. (A)  The  occupa- 
tion of  the  country  where  the  parties  live,  or  where  the  note  is 


show  where  the  maker  was  to  be  found.  This  was  a  duty  whicli  he  owed  both  to  the 
bank  and  its  notary  ;  and  he  is  without  excuse  in  tlirowing  upon  the  hitter  officer  the 
trouble,  annoyance,  and  possible  risk  of  finding  out  a  fact  for  his  benefit  with  which 
he  is  presumed  to  be  himself  acquainted,  and  with  which  he  ouglit  to  be  acquainted 
in  fact."  As  to  the  necessity  of  consulting  a  directory,  see  Granite  Bank  v.  Avers, 
16  Pick.  392. 

(e)  Slorrs,  J.,  Windham  Bank  p.  Norton,  22  Conn.  213  ;  Lord  Ellenhoroiujh,  Patience 
V.  Townley,  2  J.  P.  Smith,  223  ;  Savage,  C.  J.,  Schofield  v.  Bayard,  3  Wend.  488. 

(/)  Story  on  Prom.  Notes,  §^  257,  260.  See  infra,  chapter  on  Notice.  In 
New  York,  l)y  statute,  R.  S.  1852,  Vol.  IL  p.  178,  it  is  enacted,  that,  whenever  the 
board  of  health  of  the  city  of  New  York,  or  any  other  competent  autliority,  shall,  by 
public  notice,  designate  any  portion  of  that  city  as  the  .scat  of  an  infections  and  con- 
tagious disease,  and  declare  communication  with  such  district  dangerous,  it  shall  be 
the  duty  of  the  clerk  of  the  city  and  county  to  provide  a  book  in  which  the  luimes, 
firms,  and  places  of  business  of  any  inhabitant  of  the  city  shall  be  registered,  if  the 
parties  desire  it.  The  parties  are  required  to  designate  a  place,  in  the  registry,  outside 
the  infected  district,  but  within  the  county  of  New  York,  for  the  purpose  of  having  n 
demand  of  notes,  drafts,  or  Ijills  made,  and  to  whicli  notice  may  be  sent.  Any  demand 
made  at,  or  notice  sent  to,  such  place  is  declared  valid.  In  case  of  neglect  to  make  the 
registry,  the  holder  may  present  the  note,  bill,  or  draft  to  the  city  clerk,  and  on  dis- 
honor, deposit  a  notice  in  the  post-office  directed  to  the  proper  parties,  if  they  live 
within  the  infected  district. 

(g)  Story  on  Prom.  Notes,  §§  257,  2C1.  Patience  v.  Townley,  2  J.  P.  Sniiih,  223  ; 
Kufh  V.  Weston.  3  Ks[).  54.     See  Ilopkirk  i;.  Pago,  2  Brock.  20. 

(A)   Story  on  Prom.  Notes,  ^^  257,  262. 


CH.  XI.]      EXCUSES   FOR   ABSENCE   OF  DEMAND   OF   PAYMENT.  461 

payable,  by  a  public  enemy,  which  suspends  commercial  inter- 
course, (i)  Public  and  positive  interdictions  and  prohibitions  of 
the  State  which  obstruct  or  suspend  commerce  and  intercourse. (7) 
But  it  is  also  said  that  a  violent  storm  will  not  excuse  non-pre- 
sentnieut  at  maturity,  though  a  violent  tempest  which  has  so 
broken  up  the  roads  or  obstructed  them  as  to  prevent  passing 
might  have  this  effect. (/fc)  We  should  prefer  to  say,  as  to  all  these 
excuses,  that  no  one  of  them  necessarily  and  always,  by  an  ab- 
solute presumption  of  the  law,  is  sufficient  (unless,  perhaps,  the 
case  of  war  be  excepted),  but  only  raises  a  prima  facie  presump- 
tion, more  or  less  strong  according  to  circumstances,  and  consti 
tuting  an  excuse,  not  in  laiv,  but  in  fact,  if  it  comes  within  tlie 
meaning  and  scope  of  the  rule  of  impossibility.  Ordinarily  any 
failure  to  present  a  note  at  the  proper  time,  by  reason  of  the 
negligence  of  an  agent,  would  discharge  an  indorser,(/)  but  where 
the  holder  makes  use  of  the  public  mail  for  the  purpose  of  trans- 
mitting the  note  to  the  proper  place  in  season  to  have  a  legal  de- 
mand made,  and  without  any  negligence  on  his  part,  we  should 
say  that  he  would  not  lose  his  remedy  on  an  indorser,(w)  if 


(i)  Story  on  Prom.  Notes,  §§  257,  263. 

{j)  Story  on  Prom.  Notes,  §§  257,  263. 

(^j  Barker  v.  Parker,  6  Pick.  80. 

\l)  Storrs,  J.,  Windham  Bank  v.  Norton,  22  Conn.  213,  219. 

(m)  Windham  Bank  v.  Norton,  22  Conn.  213.  Storrs,  J.  said  :  "No  fault  or  im- 
propriety is  imputable  to  the  plaintiffs,  by  reason  of  their  having  selected  the  public 
mail  as  the  mode  of  forwarding  the  draft  in  question  to  the  bank  in  Philadelphia, 
where  it  was  payable.  It  is  properly  conceded  by  the  defendants,  that  such  mode 
of  transmission  was  in  accordance  with  the  general  commercial  usage  and  law,  in 
the  case  of  paper  of  this  description.  Indeed,  it  is  recommended  in  tiie  books  as 
the  most  proper  mode  of  transmission,  as  being  the  least  hazardous,  and  therefore 
preferable  to  a  special  or  private  conveyance.  But  although  the  public  mail  was  a 
legal  and  proper  mode  by  which  to  forward  this  paper,  it  was  their  duty  to  use  it 
in  such  a  manner  that  they  should  not  be  chargeable  with  negligence  or  unreason- 
able delay.  If,  therefore,  they  put  the  draft  into  the  post-office  at  so  late  a  period 
that,  by  the  ordinary  course  of  the  mail,  it  could  not,  or  there  was  reasonable  ground 
to  believe  that  it  would  not,  reach  the  place  of  its  destination  in  season  for  its  pre- 
sentment, when  due,  we  have  no  doubt  that  there  would  be,  on  their  pai-t,  a  want  of 
reasonable  diligence,  which  would  exonerate  the  indorser.  On  the  other  hand,  to 
throw  the  risk  of  every  possible  accident,  in  that  mode  of  forwarding  the  draft,  upon 
the  holder,  where  there  has  been  no  such  delay,  would  clearly  be  most  inconvenient, 
unreasonable,  and  unjust,  as  well  as  contrary  to  the  expectation  and  understanding 
of  the  indorser,  who  is  presumed  to  be  aware  of  the  general  usage  and  law,  in  re- 
gard to  the  transmission  by  mail  of  this  kind  of  paper,  and  must  therefore  be  sup- 
posed to  require  only  reasonable  diligence  in  this  respect  on  the  part  of  the  holder; 
and  would  indeed  be  inconsistent  with  the  rule  itself,  which  sanctions  its  transmission 
39* 


462  NOTES   AXD   BILLS.  [CH.  XI. 

through  any  accident  or  disorder,  or  the  negligence  or  mis- 
take of  the  post-office  clerks,  the  note  does  not  reach  the  des- 
tined  place  in  season  to  make  the  demand  on  the  very  day 

in  that  manner.  It  has  been  suggested  tliat  the  principle  should  be  adopted,  that  when 
the  holder  resorts  to  the  public  mail,  he  should  be  required  to  forward  the  present- 
ment at  so  early  a  period  that  if,  by  any  accident,  it  should  not  reach  the  place  of 
its  presentment  in  the  regular  course  of  the  mail,  there  should  be  time  to  recall  it, 
and  have  it  presented  when  and  where  it  falls  due  ;  or  that,  at  least,  it  should  be  for- 
warded in  season  to  ascertain  whether  it  reached  there  by  that  time,  and  to  make  such 
a  demand  or  presentment  for  payment  as  is  required  in  the  case  of  lost  bills.  We 
find  no  authority  whatever  for  any  such  rule,  nor  would  it  in  our  opinion  comport 
with  the  principle,  now  well  established,  requiring  only  reasonable  diligence  on  the 
part  of  the  holder,  or  with  the  policy  which  prevails  in  regard  to  such  commercial  in- 
struments. It  would,  in  the  first  place,  be  the  means  of  restraining  the  transfer  of 
such  paper  within  such  a  limited  time  as  to  impair,  if  not  to  destroy,  its  usefulness  and 
value,  arising  out  of  its  negotiable  quality ;  and,  in  the  next  place,  it  would  in  many 
cases  be  wholly  impracticable.  The  casualties  incident  to  this  mode  of  transmission 
are  most  various  in  their  character,  and  cannot  of  course  be  foreseen  ;  and  they  might, 
in  the  case  of  forwarding  mercantile  paper,  be  such  as  to  render  it  impossible  to  ascer- 
tain its  miscarriage,  or  to  recall  it  in  season  to  remedy  the  difficulty.  In  the  case  of 
the  draft  now  before  us,  for  example,  if  it  had  been  placed  by  the  jilaintiffs  in  the  post- 
office  at  Windham,  wliere  they  were  located  and  transacted  their  business,  for  trans- 
mission direct  from  thence  to  Philadelphia  on  the  very  day  when  they  became  the 
holders  of  it,  which  was  between  three  and  four  months  before  it  became  due,  and  by 
an  accident  or  mistake  of  the  postmaster  in  the  former  i)lacc,  similar  to  that  which 
occurred  in  this  case  at  New  York,  it  had  been  mailed  to  one  of  the  most  distant  parts 
of  our  country,  or  to  a  foreign  country,  which  would  not  have  been  more  singular  than 
that  it  should  have  been  mistakenly  mailed,  as  in  the  present  case,  for  Washington,  it 
might  not  have  been  practicable  for  the  plaintiffs  to  learn  the  accident  or  obviate  its  efi'ect 
before  the  paper  fell  due.  In  short,  such  a  rule  as  that  suggested  would  be  merely 
artificial  in  its  character,  productive  of  great  inconvenience  and  injustice  in  particular 
cases,  witiiout  any  corresponding  general  benefits,  and  change  the  whole  course  of  busi- 
ness in  regard  to  a  most  extensive  and  important  class  of  mercantile  transactions. 
Nor  has  any  other  arbitrary  or  positive  rule  been  suggested  which  is  not  equally  ob- 
noxious to  the  same  or  similar  objections.  The  only  remaining  inquiry  is,  whether  the 
plaintiffs  are  chargeable  with  negligence  for  not  forwarding  the  draft  in  question  by  an 
earlier  mail  from  New  York  to  Philadelphia.  It  was  sent  by  the  usual  legal  and  proper 
mode.  It  was  deposited  in  the  post-office  in  season  to  reach  the  place  where  it  was 
payable  before  it  fell  due,  by  the  regular  course  of  the  next  mail ;  and  there  was  no  rea- 
son to  believe  that  it  would  not  be  there  duly  delivered.  It  was  actually  sent  by  that 
mail,  and,  but  for  the  mistake  of  the  postmaster  where  it  was  mailed  in  misdirecting 
the  package  containing  it,  would  have  reached  its  proper  destination,  and  been  received 
there  in  season  for  its  presentment  when  due.  It  in  fact  reached  that  place  when  it 
should  have  done,  but  was  carried  beyond  it  in  consequence  of  that  mistake.  As  that 
mistake  could  not  be  foreseen  or  apprehended  by  the  plaiiititVs,  it  is  not  reasonable  to 
require  tlicni  to  take  any  steps  to  guard  against  it.  Indeed,  they  could  not  have  done 
so,  as  they  bad  no  control  or  su])crvision  over  the  postmaster.  They  had  a  right  to 
presume  that  the  latter  had  done  his  duty.  They  could  not  know  that  !ie  had  misdi- 
rected the  j)ackagc,  until  it  was  too  late  to  remedy  the  consequences.  The  ()c<nrrenco 
of  the  draft  being  sent  beyond  its  place  of  destination  was,  therefore,  so  fur  as  the 


CH.  XI.]      EXCUSES   FOR   ABSENCE   OF   DEJIAXD   OF   PAYMENT.  4G3 

of  maturity.  But  all  the  authorities  do  not  seem  to  adopt  this 
view.(w) 

4.    Of  the  Acts  of  a  Parti/  which  affect  his  Right  to  require 
Demand  of  Payment. 

The  second  class  of  excuses,  which  we  will  now  consider,  arise 
from  the  acts,  words,  or  position  of  a  party,  by  means  of  which 
he  is  not  entitled  to  the  demand,  of  the  want  of  which  he  would 
avail  himself.  If  the  drawer  of  a  bill  had  no  effects  in  the  hands 
of  the  drawee,  and  had  no  legitimate  expectations,  grounded 
upon  some  definite  arrangement,  that  the  bill  would  be  paid,  we 
have  seen  that  he  has  no  right  to  require  a  demand  of  it.(o) 

plaintiffs  were  concerned,  an  unavoidable  accident.  It  happened,  not  in  consequence 
of  any  delay  of  the  plaintiffs  in  putting  the  draft  into  tlie  post-otfice  at  so  late  a  pferiod 
that  it  could  not,  or  probably  would  not,  reach  its  destination  in  due  season,  but  merely 
in  consequence  of  the  act  of  the  official  to  whom  it  was  properly  confided,  done  after 
it  was  properly  in  his  charge  by  the  plaintiffs  for  transmission.  The  accident,  more- 
over, was  of  a  very  peculiar  and  extraordinary  character,  and  quite  different  from  those 
which  are  ordinarily  incident  to  that  mode  of  transmission,  and  against  which  it  would 
be  extremely  difficult,  if  not  impossible,  to  guard.  It  would  have  been  equally  liable 
to  occur  at  any  time,  when  the  draft  should  have  been  placed  in  the  post-office.  It  was 
not  owing  in  any  sense  to  the  fault  of  the  plaintiffs,  but  solely  to  that  of  the  postmas- 
ter. Under  these  circumstances,  we  do  not  feel  authorized  to  impute  any  blame  or 
negligence  to  the  plaintiffs.  We  are  therefore  of  opinion  that  judgment  should  be  ren- 
dered for  the  plaintiffs."  ^P 

[n]  In  Schoficld  v.  Bayard,  3  Wend.  488,  the  holder  of  a  bill  payable  in  London 
sent  it  by  mistake  to  Liverpool.  His  agent  at  the  latter  place  immediately  sent  it  back 
to  the  holder ;  but  by  some  oversight  of  the  clerks  in  the  post-office,  it  did  not  get  to  the 
holder  in  time  for  him  to  forward  it  to  London,  although  had  it  not  been  for  the  deten- 
tion, there  would  have  been  sufficient  time  to  have  had  a  regular  demand  made.  Savage, 
C.  J.  said  :  "  This  case  presents  no  impossibility,  if  due  diligence  had  been  used.  The 
plaintiffs  should  not  have  sent  the  bill  to  Liverpool  at  all.  It  is  true  that,  after  the  let- 
ter containing  it  had  been  left  at  Liverpool,  it  could  not  have  reached  London  iu  season ; 
but  it  was  the  fault  of  the  plaintiffs  to  have  parted  with  the  bill  in  the  manner  they  did. 
Instead  of  sending  it  to  Liverpool,  they  should  have  sent  it  to  London,  and  then  it  would 
have  been  in  season,  and  probably  would  have  been  paid.  I  am  of  opinion  that,  by  the 
law  merchant,  payment  should  have  been  demanded  in  London  on  the  12th  of  Novem- 
ber, and  that  not  having  been  done,  and  there  being  no  impossibility  to  prevent  it  but 
•what  is  attributable  to  the  want  of  due  diligence  on  the  part  of  the  holder,  the  defend- 
ants are  legally  discharged,  and  are  entitled  to  judgment."  This  case  presents  a  some- 
what different  statement  of  ficts  from  that  in  Windham  Bank  r.  Norton,  22  Conn.  213, 
supra,  p.  461,  note  m,  and  may  perhaps  be  reconciled  with  it,  on  the  ground  that  the 
failure  to  present  was  connected,  in  its  inception,  with  a  mistake  of  the  plaintiffs  them- 
selves. 

(o)  Terry  v.  Parker,  6  A.  &  E.  502,  1  Nev.  &  P.  752.  Lord  Denman,  C.  J.  said  : 
"  Many  cases  establish  the  fact  that  notice  of  dishonor  need  not  be  given  to  the  drawer 
In  such  a  case ;  and  the  reason  assigned  is,  because  he  is  in  no  respect  prejudiced  by 


464  NOTES   AND   BILLS.  [CH.  XI. 

But  the  parties  subsequent  to  the  drawer  have  still  that  right, 
and  are  discharged  by  non-demand,  although  he  is  not.{p) 

The  reason  why  the  drawer  has  no  such  right  is  twofold.  In 
the  first  place,  ho  had  no  right  to  draw  and  put  into  circulation 
such  a  bill ;  and,  secondly,  he  can  have  no  action  or  claim  against 
the  acceptor,  for  whom  he  is  a  surety,  for  not  paying,  because 
the  acceptor  was  under  no  obligation  to  pay,  and  can  suffer  no 
injury  which  does  not  spring  from  his  own  fault.  The  test  must 
always  be  in  such  a  case,  not  whether  the  drawer  had  funds  in 
the  hands  of  the  drawee,  nor  what  particular  arrangement  he 
had  made,  but  whether,  in  case  of  non-acceptance  or  non-pay- 
ment, he  can  maintain  an  action  against  the  drawee. 

As  by  far  the  greater  number  of  cases  on  this  subject  and  its 
rules  and  their  qualifications  have  arisen  with  respect  to  excuse 
for'  want  of  due  notice,  it  has  been  thought  best  to  postpone  a 
fui'ther  discussion  of  the  topic  until  we  treat  of  Notice.  We 
shall  also  consider  under  that  head  the  question  as  to  what  effect 
the  making  or  indorsing  a  note  for  the  accommodation  of  any 
party  thereto  has  on  the  subject  of  excuse. 

It  is  obvious  that  any  one  may  waive  his  right  to  presentment 
and  demand.  This  is  sometimes  done  expressly,  by  an  indorser 
writing  over  his  name,  "  I  waive  demand,"  or  otlier  similar 
words. (r/)  There  may  be  also  a  const^ctive  waiver  arising,  by 
implication,  from  the  acts  or  words  of  any  particular  indorser. 
This  subject  of  waiver  of  demand  is  also  so  intimately  connected 
with  waiver  of  notice,  that  we  prefer  to  consider  them  both  to- 
gether in  the  chapter  on  Notice. (r) 

If  an  indorser  belongs  to  two  firms,  one  of  which  has  signed 
and  the  other  indorsed  the  paper,  it  has  been  held  that  a  demand 
is  still  necessary. (5) 

want  of  such  notice,  having  no  remedy  against  any  other  j)arty  on  the  bill.  This  reason 
equally  applies  to  want  of  prcscntincnt  for  payment,  since  if  the  bill  were  jjrescnted, 
and  paid  by  the  drawee,  the  drawer  would  become  indebted  to  him  in  the  amount,  in- 
Ftead  of  l)eiiig  indebted  to  the  holder  of  the  bill,  and  would  be  in  no  way  benefited  by 
such  presentment  and  payment."  Dollfus  i-.  Froseh,  I  Denio,  367  ;  Commercial  Bank 
V.  Hughes,  17  Wend.  94;  Aborn  v.  Bosworth,  1  11.  I.  401  ;  Tarver  r.  Nance,  ."J  Ala. 
712  ;  Foard  v.  Womack,  2  id.  368.  This  subject  will  be  further  considered  under  No- 
tice, itifni. 

{p)  Iitfiii,  chapter  on  Notice. 

(7)  Woodman  v.  Thurston,  8  Cush.  157. 

(r)  Infni,  chapter  on  Notice. 

(«)  Dwiglit  V.  Scovil,  2  Conn.  654.    Sivi/t,  C.  J.  said  :  "  The  circumstance  that  one 


OH.  XI.]       EXCUSES   FOPw   ABSENCE    OF   DEMAND    OF   PAYMENT  465 

Witli  respect  to  the  pleading  in  case  of  excuse,  it  will  be  seen 
that  an  averment  of  presentment  and  demand  of  payment  on  a 
promisor  is  supported  by  proof  of  circumstances  amounting  to  an 
excuse  thereof. (/) 

"We  are  unwilling  to  close  this  topic  of  excuse  for  non- 
presentment  without  remarking,  that  the  rule  requiring  present- 
ment is  so  stringent,  and  rests  upon  reasons  which  require  so 
rigid  an  adherence  to  the  rule,  that  it  is  not  safe  or  prudent  to 
rely  upon  any  of  these  excuses,  except,  perhaps,  an  express 
waiver  in  writing  on  the  paper  itself. 

A  question  might  be  raised  in  regard  to  the  operation  of  a 
waiver  beyond  the  person  who  makes  it.  If  a  payee  indorses  a 
note,  and  writes  over  his  name,  "  I  waive  demand,"  he  certainly 
cannot  complain  if  no  demand  is  made.  But  are  all  subsequent 
indorsers  affected  and  bound  by  his  waiver  ?  So,  if  there  be 
many  indorsers,  and  the  fourth  indorser  makes  an  express  waiver 
of  demand,  the  three  before  him  are  certainly  unaffected  by  this 
waiver  ;  but  are  those  who  follow  equally  unaffected  ?  It  might 
be  said,  that  whoever  indorses  after  a  written  waiver  is  made 
must  be  considered  as  assenting  thereto,  if  he  expresses  no  dis- 
sent. But,  in  the  absence  of  authoritative  decisions,  we  should 
say,  on  the  general  theory  of  waiver,  that  it  cannot  affect  the 
rights  of  any  person  other  than  the  party  who  makes  it. 

It  should  also  be  said,  that  although  the  whole  law  of  nego- 
tiable paper  rests  upon  the  fact  that  such  paper  is  intended  to 
be  an  instrument  of  mercantile  business,  and  is  adapted  to  this 
purpose  by  this  system  of  law,  it  is  certain  that  the  rules  are  the 
same,  and  equally  enforced,  whether  the  parties  affected  by  them 
are  merchants  or  not. 


of  the  defendants  was  a  member  of  both  the  companies  who  made  and  indorsed  the 
note  can  make  no  difference;  for  each  company  is  to  be  considered  as  distinct  persons, 
with  different  funds  and  liabilities,  and  there  is  the  same  reason  for  presentment  and 
demand  as  if  the  companies  were  wholly  different.  If  the  companies  should  reside  in 
different  and  distant  places,  the  drawing  of  bills  on  each  other  might  be  convenient  in 
the  course  of  their  business ;  but,  on  the  principle  contended  for,  the  company  drawing 
the  bill  might  be  subjected  to  pay  it,  because  one  of  the  partners  belonged  to  both 
companies  when  the  company  on  whom  it  was  drawn  was  solvent,  and  would  have 
paid  the  bill  if  it  had  been  presented." 
(t)  Infra,  chapter  on  Pleading. 


Vol.  I.— 2  E 


466  ^  NOTES   AND   BILLS.  [CH.  XH. 


CHAPTER    XII. 

OF    NOTICE    OF    DISHONOR. 

While  the  duties  of  presentment  and  of  notice  of  dishonor  are 
distinct,  they  are  so  far  similar  that  much  that  was  said  of  pre- 
sentment, as  to  the  persons  by  whom  and  to  whom,  the  form  and 
manner,  and  excuses  for  the  non-performance  of  the  duty,  are 
applicable  to  both  topics,  yet  there  are  important  differences  be- 
tween them  ;  and  it  seems  better  to  treat  of  both  topics  inde- 
pendently, even  at  the  risk  of  some  actual  and  more  apparent 
repetition. 

We  shall  examine,  first,  the  form  of  the  notice  ;  secondly,  the 
manner  in  which  it  should  be  given  ;  thirdly,  the  place  to  which 
it  should  be  sent ;  fourthly,  to  whom ;  fifthly,  by  whom  ;  and 
sixthly,  when  it  should  be  given.  Excuses  for  want  of  notice 
will  be  considered  in  the  next  chapter. 

SECTION    I. 

OF    THE    FORM    OF    THE    NOTICE. 

This  is  so  far  immaterial  that  neither  the  law  nor  mercan- 
tile usage  prescribes  any  exact  form  or  phraseology  to  be  used 
invarialjly,  or  even  generally. (m)  But  there  are  certain  essential 
requisites  which  the  notice  must  contain  ;  and  these  must  be 
fully  stated,  accurately  and  intelligibly.  In  theory,  a  notice 
should  describe  the  bill  or  note  in  such  a  way  that  it  could  not 

(m)  Tliompson,  J.,  Bank  of  Alexandria  v.  Swann,  9  Pet.  33.  In  Hartley  v.  Case,  4 
B.  &  C.  339,  the  rule  is  stated  hy  Lord  Tentenlen,  C.  J.  as  follows  :  "  Tlicre  is  no  pre- 
cise form  of  words  necessary  to  be  used  in  giving  notice  of  the  dishonor  of  a  liill  of 
exchange,  but  the  language  used  must  be  Hucli  as  to  convey  notice  to  the  party  what 
the  bill  is,  and  that  payment  of  it  has  been  refused  by  the  acceptor."  So  Fletcher,  J., 
Ilousatonic  Bank  v.  Laflin,  .•)  Cush.  546  ;  Kilgoro  v.  Bulklcy,  14  Conn.  362  ;  Ucedy 
i;.  Seixas,  2  Johns.  Cas.  337 ;  Spann  v.  Baltzcll,  1  Fla.  301  ;  Brewster  v.  ArnCid,  1 
Wise-  264. 


CH.  Xn.]  THE  FORM  OF  THE  NOTICE.  467 

be  mistaken  ;  should  state  the  presentment,  and  the  dishonor 
of  it ;  should  be  dated  ;  should  say  that  the  party  to  whom  the 
notice  is  sent  is  looked  to  for  payment ;  should  state  where  the 
note  is,  that  the  party  notified  may  find  it ;  and  should  state  who 
the  holder  is,  and  who  gives  the  notice,  or  at  whose  request  it  is 
given.  Such  at  least  are  the  elements  of  a  full,  regular,  and 
perfectly  safe  notice.  And  formerly  courts  have  looked  upon  all 
of  these  as  so  far  essential,  that  the  entire  failure  of  any  one  of 
them  would  go  far  to  vitiate  the  notice. 

c  Perhaps  this  early  strictness  was  excessive  ;  but  it  is  at  least 
quite  as  certain  that  the  laxity  shown  in  some  modern  cases,  in 
which  far  too  much  regard  is  paid  to  the  seeming  equity  of  the 
particular  case,  has  tended  to  create  much  difficulty  in  determin- 
ing what  is  now  absolutely  essential  to  the  sufficiency  of  a  notice. 
In  some  case  or  other  almost  every  one  of  the  elements  above  enu- 
merated has  been  disregarded  ;  and  there  seems  to  be  a  general 
consent,  especially  of  the  American  courts,  that  some  of  these 
are  quite  unnecessary.  In  a  brief  but  very  excellent  treatise  on 
Bills, (?;)  published  in  England,  it  is  said  :  "  All  that  is  necessary 
is  to  apprise  the  party  liable  of  the  dishonor  of  the  bill  in  question, 
and  to  intimate  that  he  is  expected  to  pay  it."  But  the  weight 
of  American  authority  is  against  the  express  requirement  of  the 
statement  of  demand,  and  it  would  therefore  follow  that  nothing 
more  is  necessary  than  a  statement  that  the  bill  or  note  is  dis- 
honored.    But  this  seems  to  us  to  be  going  somewhat  too  far. 

All  the  cases  agree  that  the  dishonor  of  the  bill  or  note  must  be 
clearly  stated  ;  indeed,  it  is  difficult  to  see  that  the  notice  could 
be  effectual  for  any  purpose  whatever,  if  this  were  omitted. (z^) 
The  rule,  as  stated  in  some  of  the  English  cases,  is,  that  it  ought 
to  appear  on  the  face  of  the  instrument  "  in  express  terms,  or  by 
necessary  implication,"  that  the  bill  or  note  was  presented  and 
dishonored,  (a;)      But  this  method  of  laying  down  the  rule  has 

(v)  Byles  on  Bills,  213.  In  Chitty  on  Bills,  lOtli  Lond.  ed.,  299,  it  is  stated  tha. 
"  there  are  two  requisites  which  are  indispeusahle  to  a  good  notice,  namely,  a  descrip- 
tion of  the  bill  and  an  intimation  of  its  being  dishonored." 

(w)  Solarte  v.  Palmer,  7  Bing.  530,  1  Cromp.  &  J.  417,  1  Tyrw.  371.  This  case  was 
taken  from  the  Exchequer  Chamber  to  the  House  of  Lords,  and  confirmed  there. 
1  Bing.  N.  C.  194,  8  Bligli,  N.  S.  874,  2  Clark  &  F.  93  ;  Gilbert  v.  Dennis,  3  Met. 
495.     See  Lockwood  v.  Crawford,  18  Conn.  361. 

(x)  Tindal,  C.  J.,  Solarte  v.  Palmer,  7  Bing.  530,  1  Cromp.  &  J.  417,  1  Tyrw.  371. 
The  rule  is  so  stated  by  Park,  J.  in  this  case,  as  decided  by  the  House  of  Lords  in 


4:66  NOTES  AND   BILLS.  [CH.  XU. 

been  objected  to  as  too  stringent,  and  it  has  been  said  that  "  it  is 
enough  if  it  appear  by  reasonable  intendment,  and  would  be 
inferred  by  any  man  of  business,  that  the  bill  has  been  presented 
to  the  acceptor,  and  not  paid  by  him."(y)  It  is  difficult  to  recon- 
cile the  cases  in  that  country  as  to  what  form  of  words  amounts 
to  a  satisfactory  information  respecting  the  fact  of  dishonor,  and 
to  deduce  any  general  rules  which  may  apply  to  all  cases.  It 
seems  to  be  well  settled,  however,  that  the  mere  statement  of  the 
fact  that  a  note  or  bill  is  unpaid  is  insufficient ;  (z)  but  if  in  ad- 
dition some  words  which  apply  to  the  protest  are  used,  such  as 
"noting,"(a)  "  charges," (Z>)  &c.,  the  defect  will  be  remedied. 
With  respect  to  the  word  "returned,"  there  seems  to  have  been 
a  conflict  of  opinion  between  the  Court  of  Common  Pleas  and 
those  of  the  Exchequer  and  the  Queen's  Bench,  the  former  hav- 
ing been  of  opinion  that  it  was  not  sufficient,(6')  and  the  latter 
that  it  was,  because  it  was  a  technical  expression  well  understood 
as  applying  to  negotiable  paper  which  has  been  dishonored.  (<;?) 
The  word  "dishonored"  is  sufficient. (e)  It  would  seem  that 
less  strictness  is  required  in  case  of  a  verbal  notice  than  where 
it  is  written,  or  that  a  want  of  precision  in  the  notice  may  be 
cured  by  the  answer.  Thus,  when  the  clerk  of  the  holder,  the 
day  after  the  maturity  of  the  bill,  told  the  drawer  that  the  bill 

1  Bing.  N.  C.  194.  It  is  so  laid  down  by  Tindal,  C.  J.,  in  Boulton  v.  Welsh,  3  Bing. 
N.  C  688. 

(y)  Parke,  B.,  Hedger  v.  Steavenson,  2  M.  &  W.  799. 

[z)  Boulton  V.  Welsh,  3  Bing.  N.  C.  688  ;  Strange  v.  Price,  10  A.  &  E.  125  ;  Phil- 
lips V.  Gould,  8  Car.  &  P.  355  ;  Furze  v.  Sharwood,  2  Q.  B.  388 ;  Bailey  v.  Porter, 
14  M.  &  W.  44,  seems  inconsistent  with  the  previous  cases ;  but  it  will  be  seen  that  the 
bill  was  accepted  payable  at  a  specified  place.  It  will  be  remarked,  however,  that  no 
stress  was  laid  upon  this  fact  in  the  language  of  the  judges  who  delivered  opinions. 
This  rule  was  much  relaxed  in  Paul  v.  Joel,  3  H.  &  N.  455,  where  the  notice  was,  that 
"  A's  acceptance  to  B,  .£500,  due,  &c.,  is  unpaid.  Payment  to  C.  &  Co.  is  requested 
before  4  o'clock."     Held  sufficient. 

{n)  Hedger  v.  Steavenson,  2  M.  &  W.  799;  Armstrong  v.  Christian!,  5  C.  B.  687. 

[h)  Grugeon  v.  Smith,  6  A.  &  E.  499  ;  Everard  v.  Watson,  1  Ellis  &  B.  801. 

(r)  Boulton  V.  Welsh,  3  Bing.  N.  C.  688.  But  the  later  cases  in  this  court  seem  to 
be  receding  from  the  ground  first  taken.  Sec  Tindal,  C.  J.,  Messenger  v.  Southey,  1 
Man.  &  G.  76. 

(d)  Hedger  v.  Steavenson,  2  M.  &  W.  799 ;  Lewis  v.  Gompcrtz,  6  id.  399  ;  Grugeon 
V.  Smith,  6  A.  &  E.  419  ;  Furze  v.  Sharwood,  2  Q.  B.  388.  See  the  remarks  o(  Liftle- 
dale  and  Coleridi/i>,  JJ.,  in  Strange  v.  Price,  10  A.  &  E.  125. 

(c)  Woodthorpo  v.  Lawes,  2  M.  &  W.  109;  Stocken  v.  Collin,  7  id.  515;  Row- 
lands V.  Springett,  14  id.  7;  King  i-.  Bickley,  2  Q.  B.  419;  Smith  t;.  Boulton.  1 
Hurl.  &  W.  3. 


CH.  XII.]  THE   FORM   OF   THE   NOTICE.  469 

had  been  duly  presented,  and  tliat  the  acceptor  could  not  pay  it, 
and  the  drawer  replied  that  he  would  see  the  holder  about  it, 
this  was  held  to  be  sufficient  evidence  to  warrant  the  jury  in 
finding  that  the  fact  of  the  dishonor  of  the  note  was  sufficiently 
communicated  to  the  drawer.(/)  Some  of  the  later  cases  seem 
to  relax  the  very  stringent  rule  as  originally  laid  down,  and  the 
first  authoritative  decisions  have  been  sometimes  regretted.  But 
the  rules  of  law  on  this  subject  are  still  exact.  (^) 

(/)  Metcalfe  v.  Richardson,  11  C.  B.  1011.     See  Paul  v.  Joel,  3  H.  &  N.  455. 

((/)  Parke,  B.,  Allen  v.  Edmundson,  2  Exch.  719  ;  Lord  Campbell,  C.  J.,  Everard  v. 
Watson,  1  Ellis  &  B.  801.  The  following  notices  have  been  iield  insufficient,  for  not 
stating  tiie  fact  of  dishonor.  "  I  am  desired  to  apply  to  you  for  the  payment  of  tlie  sum 
of  £  150,  due  to  myself,  on  a  draft  drawn  by  Mr.  Case  on  Mr.  Case,  wliicli  I  hope  you 
will,  on  receipt,  discharge,  to  prevent  the  necessity  of  law  proceedings,  which  otherwise 
will  immediately  takei)lace."  Hartleys.  Case,  4  B.  &  C.  339.  "  A  bill  drawn  by  Mr. 
J.  K.  upon  Messrs.  J.  &  Co.,  and  bearing  your  indorsement,  has  been  put  into  our 
hands  by  the  assignees  of  Mr.  J.  R.  A.,  witli  directions  to  take  legal  measures  for  the  re- 
covery thereof,  tmless  immediately  paid  to  yours,"  &c.  Solarte  v.  Palmer,  7  Bing.  530, 
supra,  p.  467,  note  iv.  "  The  promissory  note,  &c.  became  due  yesterday,  and  is  returned 
to  me  unpaid."  Boulton  v.  Welsh,  3  Bing.  N.  C.  688.  "  Messrs.  S.  &  Co.  inform  Mr.  P. 
that  J.  B  's  acceptance,  &c.  is  not  paid  ;  as  indorser,  Mr.  P.  is  called  upon,"  &c.  Strange 
V.  Price,  10  A.  &  E.  125.  "  A  bill,  &c.  lies  at  my  office  unpaid."  Phillips  v,  Gould, 
8  Car.  &  P.  355.  "  The  bill,  &c.  is  not  took  up,  and  4s.  6c?.  expenses  ;  and  the  money 
I  must  pay,"  &c.  Messenger  v.  Southey,  1  Man.  &  G.  76.  "  A  bill,  &c.  is  unpaid,  and  the 
person  at  whose  house  it  is  made  payable  don't  speak  very  favorably  of  the  acceptor's 
punctuality."  Furze  v.  Sharwood,  2  Q.  B.  388.  "  A  bill,  &c.  is  unpaid,  and  lies  due  at 
Mr.  J.  F.'s,"  &c.  Id.  "  A  bill,  &c.  lies  due  and  unpaid  at  my  house."  Id.  "  W.  H.'s 
acceptance,  &c.  is  unpaid.     He  has  promised  to  pay  it  in  a  week  or  ten  days,"  &c.    Id. 

The  following  notices  were  held  to  state  the  fact  of  dishonor  sufficiently.  "  Your 
note  has  been  returned  dishonored."  Lord  Abinger,  C.  B.,  Edmonds  i'.  Gates,  2 
Jur.  183.  "Mr.  E.  is  unable  to  pay  the  note  for  a  few  days;  he  says  he  shall  be 
ready  in  a  week,"  &c.  Margesson  ?;.  Goble,  2  Chitty,  364.  "  A  promissory  note,  &c., 
has  been  returned  unpaid,  and  I  have  to  request  that  you  will  please  remit  the  amount 
thei-eof,  with  Is.  &d.  noting."  Hedger  v.  Steavenson,  2  M.  &  W.  799.  "  A  bill,  &c. 
is  dishonored  and  unpaid,  and  I  am  desired  to  give  you  notice  thereof,  and  request 
that  the  same  may  be  immediately  paid."  Woodthorpe  v.  Lawes,  2  M.  &  W.  109. 
"  A  bill,  &c.  has  been  presented  for  payment  to  the  acceptor  thereof,  and  returned  dis- 
honored, and  now  lies  overdue  and  unpaid,"  &c.  Lewis  v.  Gompertz,  6  M.  &  W.  400. 
"  I  am  instructed  to  give  you  notice  that  a  bill,  &c.  has  been  dishonored."  Stocken  v. 
Collin,  7  M.  &  W.  515.  "An  acceptance,  &c.  is  unpaid,  and  I  request  your  imme- 
diate attention  to  it"  Bailey  u.  Porter,  14  M.  &  W.  44.  "  Bill,  &c.  dishonored." 
Rowlands  v.  Springett,  14  M.  &  W.  7.  "  The  bill  is  this  day  returned,  with  charges." 
Grugeon  v.  Smith,  6  A.  &  E.  499.  "  The  acceptance,  &c.  has  been  presented  for  pay- 
ment, and  returned,  and  now  remains  unpaid."  Cooke  v.  French,  10  A.  &  E.  131,  note  b. 
''  Your  draft,  &c.  is  returned  to  us  unpaid,  and  if  not  taken  up  this  day,  proceedings 
will  Le  taken  against  you  for  the  recovery  thereof."  Robson  v.  Curlewis,  2  Q.  B.  421. 
"A  bill,  &c.  lies  at,  &c.,  dishonored."  King  v.  Bickley,  id.  419.  "  We  beg  to  ac- 
quaint you  with  the  non-payment  of  A's  acceptance,  &c.,  amounting,  with  expenses, 

VOT-.  I.  40 


470  /  NOTES  AND   BILLS.  [CH.  XH. 

Although  in  some  of  the  cases  in  America  the  rule  is  stated  in 
the  words  of  Lord  Tindal,  C.  J.  and  Parke,  J.,  yet  it  does  not 
seem  to  be  so  stated  generally,  and  the  tendency  of  the  authori- 
ties is  towards  the  more  liberal  application  ;  (h)  but  still  it  is  clear 
that  something  more  than  the  mere  fact  of  non-payment  must 
appear. (t)    The  reason  is,  that  it  does  not  follow  that  a  note  is  dis- 

to,  &c.,  wliich  remit  to  us  in  course  of  post,  without  fail."  Everard  v.  Watson,  1  Ellis 
&  B.  801.  "  A  bill,  &c.  became  due,  &c.,  and  is  unpaid.  Noting,  5s."  Armstrong  v. 
Christiani,  .5  C.  B.  687.  A  notice  by  an  attorney  as  follows :  "  I  am  requested  to 
apply  to  you  for  payment  of,  &c.,  the  amount  of  an  overdue  acceptance  drawn  by  you, 
&c.,  and  to  inform  you  that,  unless  the  same  be  paid  to  me,  with  noting,  interest,  and 
5s.  for  this  application,  proceedings  will  be  taken,"  &c.  Wathen  v.  Blackwell,  6  Jur. 
738.  A  parol  notice  to  the  following  effect :  "  I  called  to  tell  Mr.  A.  that  a  bill,  &c. 
was  presented,  &c.,  is  unpaid  and  dishonored,"  &e.     Smith  i\  Boulton,  1  Hurl.  &  W.  3. 

{h)  Story,  J.,  Mills  v.  Bank  of  U.  S.,  11  Wheat.  431  ;  Sliaw,  C  J.,  Gilbert  v.  Den- 
nis, 3  Met.  495  ;  Beardsley,  J.,  Wynn  v.  Alden,  4  Denio,  163. 

(i)  Gilbert  v.  Dennis,  3  Met.  495  ;  Pinkham  r.  Macy,  9  id.  174  ;  Dole  v.  Gold,  5 
Barb.  490 ;  Ransom  v.  Mack,  2  Hill,  587  ;  Sinclair  v.  Lynah,  1  Speers,  244 ;  Town- 
send  V.  Lorain  Bank,  2  Ohio  State,  345  ;  Armstrong  v.  Thruston,  11  Md.  148  ;  Man- 
ning V.  Hays,  6  id.  5  ;  Boehme  v.  Carr,  3  id.  202 ;  Nailor  r.  Bowie,  id.  251  ;  Graham  v. 
Sangston,  1  id.  59.  In  Gilbert  v.  Dennis,  3  Met.  495,  Shaiv,  C.  J.  said,  after  referring 
to  the  case  of  Mills  v.  U.  S.  Bank,  11  Wheat.  431,  which  had  been  cited  in  argument 
as  an  authority  to  show  that  the  notice  need  not  state  the  fact  of  dishonor:  "As  to  the 
sufficiency  of  the  notice,  the  opinion  was  delivered  by  Mr.  Justice  Story.  Some  particu- 
lar expressions,  taken  alone,  would  seem  to  warrant  the  position  for  which  it  is  cited. 
But  taking  the  whole  together,  and  in  reference  to  the  case  then  before  the  court,  wo 
think  it  is  not  opposed  to  the  rule  as  stated  in  the  English  cases."  After  carefully 
reviewing  the  authorities,  the  learned  judge  continued:  "We  have  thus  attempted,  at 
the  risk  of  being  somewhat  tedious,  to  ascertain  what  the  true  rule  is  upon  this  subject, 
on  account  of  the  extreme  importance  of  certainty  and  uniformity  in  the  rules  of  law 
applicable  to  the  rights  and  duties  of  holders  and  other  parties  to  notes  and  bills  of  ex- 
change. And  we  take  that  rule  to  be,  that,  as  an  indorser  is  liable  only  conditionally 
for  the  payment,  in  case  of  a  dishonor  of  tlie  note  at  its  maturity  by  the  maker,  and 
notice  thereof  to  the  indorser,  in  order  to  charge  him,  notice  of  such  dishonor  nmst 
be  given  him  by  the  holder  or  his  agent,  or  some  i)arty  to  the  bill ;  that  mere  notice  of 
non-payment,  which  docs  not  express  or  imply  notice  of  dishonor,  is  not  such  notice  as 

will  render  the  indorser  liable This  notice  comes  from  an  individual,  not  from  a 

bank.  It  was  delivered  at  11  A.  M.  There  would  then  be  no  default  and  no  dishonor, 
unless  a  demand  had  been  made  on  the  promisor.  An  averment,  therefore,  that  it  was 
unpaid,  did  not,  by  necessary  imijlication,  or  reasonable  intendment,  amount  to  an  aver- 
ment or  intimation  that  payment  had  been  demanded  and  refused,  or  that  the  note  had 
been  otherwise  dislionored."  Some  of  tlic  earlier  cases  seem  to  have  been  less  strict,  and 
to  have  decided  that  a  notice  was  sufficient  if  it  put  the  indorser  on  inquiry  ;  but  we  uro 
aware  of  no  recent  decisions  to  this  eflect.  See  Hank  of  Cajjc  Fear  v.  Seawell,  2  Hawks, 
560;  Chewningr.  Gatewood,  5  How.  Miss.  552;  Bank  of  U.  S.  v.  Norwooil,  1  Harris 
&  J.  423  ;  Sussex  Bank  v.  Baldwin,  2  Harrison,  487,  490;  Shrievc  r  roiiibs,  1  Littell, 
194  ;  Kcedy  v.  Seixas,  2  Johns.  Cas.  .337  ;  Bank  of  Bochester  i-.  Gould,  9  Wend.  279. 

The  following  notice  was  held  sufficient,  the  note  being  payable  at  a  specified  place  : 
''  I  addressed  written  notices  to  the  indorsers  of  the  note  therein,  informing  them  that 


CII.  XII.]  THE   FORM    OF   THE   NOTICE.  471 

honored  because  it  is  unpaid,  for  we  have  seen  that  the  holder  is: 
obliged  to  use  reasonable  diligence  to  find  the  maker  and  acceptor, 
and  to  present  the  bill  to  him.  This  docs  not  apply  where  a  note 
or  bill  is  made  payable  at  a  specified  place,  and  consequently  the 
notice  may  be  sufficient  in  such  a  case  if  it  appear  simply  tliat 
the  note  or  bill  was  unpaid. (j)  The  word  "protested"  used  in 
a  notice  clearly  implies  that  the  note  or  bill  has  been  dishonored, 
in  all  cases  where  a  protest  is  necessary  ;  (k)  and  by  the  weight 
of  authority  this  word  sufficiently  designates  that  the  necessary 
steps  have  been  taken  even  in  the  case  of  inland  bills  (/)  and 
promissory  notes, (w)  where  the  law  docs  not  require  a  protest. 

In  the  earlier  English  cases  it  has  been  regarded  as  a  third 
requisite  to  a  valid  notice,  that  it  should  state  that  the  party  to 
whom  the  notice  was  sent  was  looked  to  for  payment. (w)  But 
there  does  not  seem  to  have  been  any  express  decision  to  this 
point,  and  from  the  later  cases  it  would  seem  to  be  considered 
that  this  is  not  essential,  because  it  is  implied  from  the  fact  of 
the  bill  being  protested. (o) 

they  were  severally  held  liable  for  the  payment  thereof."  Graham  v.  Sangston,  1  Md. 
59.  So  were  the  following  notices,  where  the  note  was  payable  at  a  bank.  "  The  note 
of,  &c.,  which  you  indorsed,  fell  due  this  day,  and  remains  unpaid."  Clark  v.  Eldridge, 
13  Met.  96.  "  I  addressed  written  notices  to  the  indorsers,  &c.,  informing  them  that 
it  had  not  been  paid,"  &c.     Hunter  v.  Van  Bomhorst,  1  Md.  504. 

(j)  Clark  V.  Eldridge,  13  Met.  96.  See  Pinkham  v.  Macy,  9  id.  174 ;  Gilbert  v.  Den- 
nis, 3  id.  495  ;  Housatonic  Bank  v.  Laflin,  5  Gush.  546 ;  Graham  v.  Sangston,  1  Md. 
59  ;   Hunter  c.  Van  Bomliorst,  id.  504  ;  Sasscer  v.  Farmers'  Bank,  4  id.  409. 

{k)  Crawford  v.  Branch  Bank,  7  Ala.  205  ;  Spies  v.  Newberry,  2  Doug.  Mich.  495. 
In  De  Wolf  v.  Murray,  2  Saiidf  166,  a  statement  by  an  indorsee  charging  the  indorser 
with  "  protested  exchange,"  giving  the  names  of  the  drawer  and  acceptor,  the  amount 
and  charges,  was  held  sufficient  to  warrant  a  finding  by  the  jury  that  this  contained 
sufficient  intimation  of  dishonor. 

(/)   Saltmarsh  v.  Tuthill,  13  Ala.  390. 

(m)  Mills  V.  Bank  of  U.  S.,  1 1  Wheat.  431  ;  Bank  of  Alexandria  v.  Swann,  9  Pet.  33 ; 
Cook  I'.  Litchfield,  5  Sandf  330,  5  Seld.  279  ;  Cayuga  Co.  Bank  v.  Warden,  1  Comst. 
413,  2  Seld.  19  ;  Youngs  v.  Lee,  2  Kern.  551, 18  Barb.  187  ;  Beals  v.  Peck,  12  Barb.  445  ; 
Kemer  v.  Downer,  23  Wend.  620 ;  Crocker  v.  Getcliell,  23  Maine,  392 ;  Bank  of  Roches- 
ter V.  Gould,  9  Wend.  279 ;  Howe  v.  Bradley,  19  Maine,  31  ;  Smith  v.  Little,  10  N.  H. 
526  ;  Mainer  v.  Spurlock,  9  Rob.  La.  161 ;  Kilgore  v.  Bulkley,  14  Conn.  362 ;  Housatonic 
Bank  v.  Laflin,  5  Gush.  546  ;  Brewster  v.  Arnold,  1  Wise.  264  ;  Denegre  v.  Hii-iart,  6  La. 
Ann.  100  ;  Burgess  v.  Vreeland,  4  N.J.  71.    Contra,  Piatt  v.  Drake,  1  Doug.  Mich.  296. 

(n)  Buller  and  Ashlinrst,  JJ.,  Tindal  v.  Brown,  1  T.  R.  169. 

(o)  Miers  v.  Brown,  11  M.  &  W.  372.  Purke,  B.,  Allen  v.  Edmundson,  2  Exch.  719  ; 
Furze  i\  Sharwood,  2  Q.  B.  388  ;  King  v.  Bickley,  id.  419  ;  Chard  v.  Fox,  14  id.  200 ; 
Vresswell,  J.,  Cauni  v.  Thompson,  7  C  B.  400 ;  Hamilton  v.  Smith,  Longf  &  T.  100. 
In  East  V  Smith,  4  Dow.  &  L.  744,  Coleridge,  J.  made  a  distinction  between  the  case 


472  NOTES   AND   BILLS.  [CH.  XH. 

The  Supreme  Court  of  the  United  States  has  distinctly  de- 
clared that  a  notice  of  dishonor  addressed  to  a  party  to  a  note 
"  necessarily  implies  "  that  he  is  looked  to  for  payment,  because 
"  for  what  other  purpose  could  it  be  sent  ?  "(/?)  Such  is  certainly 
the  prevailing  rule  at  this  time.(^)  "While,  however,  a  demand 
is  implied  by  a  statement  of  dishonor,  it  is  quite  clear  that  as  yet 
dishonor  is  not  implied  in  a  statement  of  demand  ;  and  it  is 
therefore  not  enough  to  tell  the  party  notified  that  he  is  looked 
to  for  payment,  unless  he  is  also  told  that  the  paper  is  dishon- 
ored. Such  is  the  English  rule,  and  we  are  not  aware  of  any 
authoritative  American  cases  which  hold  otherwise  ;  although  it 
would  be  easy  to  ask  on  what  other  ground  can  payment  be 
required,  and  about  as  logical  and  rational  to  hold  that  dishonor 
was  implied  hi  demand,  as  that  demand  was  implied  in  dishonor. 

It  is  obvious,  also,  that  the  notice  should  describe  the  instru- 
ment so  that  its  identity  is  sufficiently  certain,  and  so  that  there 
can  be  no  reasonable  ground  for  mistaking  it.  The  requirements 
of  the  law  on  this  point  would  seem  to  be  satisfied  with  any  de- 
scription which,  under  all  the  circumstances  of  the  case,  so  desig- 
nates and  distinguishes  the  note  or  bill  as  to  leave  no  doubt  in  the 
mind  of  the  indorser,  as  a  reasonable  man,  what  note  was  intend- 
ed. (/•)  There  is,  however,  much  uncertainty  in  the  adjudication 
of  our  various  courts,  and  it  is  not  easy  to  say,  either  on  reason 
or  authority,  what  the  law  actually  requires.  Thus  it  has  been 
held  in  England,  that  notice  to  the  drawer  that  his  draft  on  the 
drawee,  naming  the  latter,  was  dishonored,  was  prima  facie  suf- 
ficient, although  neither  the  date,  amount,  time  of  maturity,  &c. 
was  specified. (s)     It  has  been  lield  in  America,  that  a  notice  to 


of  a  notice  coming  directly  from  tlie  holder  and  one  not  coininj^  imniediately  fi-om  Iiini, 
intimating  that  in  tiic  former  no  statement  that  the  party  receiving  the  notice  was  looked 
to  for  payment  was  necessary,  and  in  the  latter,  that  such  statement  should  he  made. 

{j>)  Bank  of  U.  S.  v.  Carneal,  2  I'et.  .543. 

(f/)  Cowles  V.  Harts,  3  Conn.  516  ;  Warren  v.  Oilman,  17  Maine,  360  ;  Townsend  v. 
Lorain  Bank,  2  Ohio  State,  345  ;  Barstow  v.  Iliriart,  6  La.  Ann.  98  ;  Burgess  v. 
Vreeland,  4  N.  J.  71  ;  Shrieve  v.  Duckham,  1  Littell,  194.  See  Ransom  v.  Mack, 
2  Hill,  587. 

(r)  Sec  iShuw,  C.  J.,  Gilhert  v.  Deimis,  3  Met.  495,  498 ;  Shelton  v.  Braiihwaitc,  7 
M.  &  W.  436. 

(s)  Shelton  v.  Braithwaite,  7  M.  &  W.  436.  In  Stockman  v.  Parr,  11  id.  809.  tho 
only  descrifition  of  the  hill  sued  on,  in  an  action  against  the  drawer,  was,  "  £  53  1  Is.  6<i. 
due  on  your  dishonored  note,  dated  19th  of  Decemhcr  last."  The  amount  of  tho  bill 
was  £.53,  the  charges  heing  6s.  dd.     This  was  held  sufficient. 


CH.  XII.]  THE   FORM   OF   THE   NOTICE.  473 

an  iiidorser  of  a  note,  simply  stating  the  name  of  the  maker,  the 
amonnt,  and  the  fact  that  it  was  indorsed  by  the  party  to  whom 
the  notice  was  sent,  was  a  snfficient  description. (^)  But  iu  such 
cases  it  is  open  to  the  defendant  to  prove  any  circumstances 
tending  to  show  that  sucli  a  description  was  insufficient  to  ap- 
prise him  what  note  was  intended.  He  may  show,  for  instance, 
such  facts  as  that  there  were  two  or  more  notes  or  bills  to  which 
the  terms  of  the  notice  might  equally  apply,  and  then  the  notice 
might  be  void  for  uncertainty  as  to  the  description. (w)    It  has  been 

(0  Housatonic  Bank  v.  Laflin,  5  Cush.  546  ;  Beals  v.  Beck,  12  Barb.  24.5  ;  Youngs 
V.  Lee,  18  iil.  187,  2  Kern.  551  ;  Kilgore  v.  Bulkley,  14  Conn  362.  In  Wheaton  v. 
Wihnarth,  13  Met.  422,  the  notice,  in  addition  to  these  facts,  stated  the  date  when  the 
note  was  due,  and  was  held  sufficient.  So  Bank  of  Rochester  v.  Gould,  9  Wend.  279. 
In  Cook  ;;.  Litchfield,  5  Sekl.  279,  5  Sandf.  330,  the  notice  stated  the  name  of  the 
maker,  the  amount  and  date  of  the  note,  the  indorsement,  and  also  information  that  it 
was  protested  on  the  same  day  it  became  due.  This  was  held  to  describe  the  note  suffi- 
ciently. The  notice  need  not  state  the  name  of  the  holder,  Mills  v.  Bank  of  U.  S.,  II 
"Wheat.  431,  Bradley  v.  Davis,  26  Maine,  45;  nor  at  whose  request  the  notice  was 
given,  id.,  Shed  v.  Brett,  1  Pick  401  ;  nor  where  the  demand  was  made.  Mills  w.  Bank 
of  U.  S.,  II  Wheat.  431  ;  nor  when  a  note  was  protested,  Cook  v.  Litchfield,  supra; 
nor  where  the  bill  is  lying,  nor  on  whose  behalf  payment  is  demanded,  Woodthorpe  v, 
Lawes,  2  M.  &  W.  109,  Housego  v.  Cowne,  id.  348,  Harrison  v.  Ruscoc,  15  id.  231 ; 
nor  at  what  hour  the  note  was  presented  at  a  bank,  Fleming  v.  Fulton,  6  How.  Miss. 
473  ;  nor  that  the  party  presenting  had  the  paper  with  him  at  the  time,  nor  the  name 
of  the  drawees,  Mainer  v.  Spurlock,  9  Hob.  La.  161  ;  nor  the  fact  of  payment,  nor  the 
absence  of  the  maker  when  the  note  was  presented,  Sanger  v.  Stimpson,  8  Mass.  260 ; 
nor  at  what  time  payment  was  due,  Dcnegre  v.  Hiriait,  6  La.  Ann.  100.  In  Wjnn 
V.  Alden,  4  Denio,  163,  the  notice,  which  had  no  date,  stated  that  the  note  had  been 
"  this  day  presented  for  payment."  Held  defective.  Sedqwcre.  In  Cayuga  Co.  Bank 
V.  Warden,  1  Comst.  413,  2  Seld  19,  the  notice  to  each  of  two  joint  indorsers  stated 
that  the  note  was  indorsed  "  by  you."  It  was  objected,  that  this  described  the  indorse- 
ment as  a  several  one,  when  it  was  joint,  but  the  court  overruled  the  objection. 

(w)  In  the  cases  cited  supra,  note  s,  the  reason  given  for  the  decision  was,  that  it  did 
not  ap])ear  that  there  were  any  other  bills  to  which  the  notice  could  apply,  and  there- 
fore the  indorser  could  not  have  been  misled.  In  Cook  v.  Litchfield,  5  Seld.  279,  there 
were  four  notes  of  the  same  maker,  indorser,  date,  and  amount,  but  payable  respec- 
tively at  nine,  ten,  eleven,  and  twelve  months  from  the  common  date.  The  notices 
were  alike  in  all  respects  except  their  dates,  and  in  two  the  amount  of  the  interest  due 
was  stated  in  the  margin.  It  was  held  that  the  first  notice  was  sufficient,  no  other 
note  to  which  the  notice  was  applicable  having,  at  that  time,  become  due  ;  but  that  the 
notice  was  insufficient  as  regarded  the  three  other  notes,  because  there  were,  at  the  time 
each  became  due,  two  or  more  notes  in  existence  to  which  the  terms  of  the  notice  would 
equally  apply.  It  will  be  seen  that  each  notice  was  dated  the  day  when  the  note  to 
which  it  referred  fell  due,  and  the  only  reference  to  the  time  of  maturity  contained  in 
the  body  of  the  notice  was  the  fact  of  protest  "  on  the  day  when  the  same  became  due." 
It  is  somewhat  difficult,  we  think,  to  answer  the  objection  to  this  case,  that  on  the  day 
the  see  fid  notice  was  received  the  indorser  could  not  have  considered  it  as  referring  to 
the  first  note,  because  he  had  already  received  notice  of  the  dishonor  of  that  note  a 
40* 


474  NOTES   AND   BILLS.  [CH.  XH 

held  tliat  the  notice  should  state  the  name  of  the  maker  of  the 
note,(y)  and  also  the  date  of  the  presentment, (t^)  but  it  may 
be  doubted  whether  the  latter  is  essential.  A  verbal  notice  in 
which  the  only  words  of  description  were  "  the  note  "  has  been 
held  sufficient,  it  appearing  from  the  conversation  that  the  in- 
dorser  understood  what  note  was  referred  to. (a;)  The  authorities 
are  conflicting  as  to  the  point  whether  the  question  of  sufficiency 
of  the  description  in  the  notice  is  one  for  the  court  or  the  jury 
to  decide.  We  should  say,  that  on  principle  the  court  ought  to 
determine  the  point,  which  is  not  whether  the  party  notified  was 
misled  or  deceived,  but  whether  he  might,  under  all  the  circum- 
stances, as  a  reasonably  prudent  man,  have  been  deceived. (^) 
But  there  are  authorities  which  hold  that  the  matter  depends  on 
whether  the  indorser  has  been  actually  misled  or  deceived,  and 
that  this  is  a  fact  which  the  jury  alone  can  decide. (^r) 

The  effect  of  a  misdescription  of  the  note  in  the  notice  has  been 
somewhat  considered,  and  liere  also  the  authorities  are  in  an 
unsatisfactory  state.  It  is  said  that  the  law  in  England  "  now  is, 
that  any  misdescription  which  does  not  mislead  is  immaterial, 
and  does  not  vitiate  the  notice." (a)  It  would  follow  from  this 
view  that  a  jury  should  determine  the  question,  for  it  must  be 
a  matter  of  fact  in  each  case  whether  the  indorser  was  misled  or 


month  previous.  The  court  held  that  it  could  not  apply  to  the  third  or  fourth  note, 
because  these  were  not  at  this  time  due.  The  judgment  of  the  Superior  Court,  5 
Sandf.  330,  was  overruled.  Duer,  J.,  in  his  opinion  in  the  latter  court,  said:  "Nor  can 
we  doubt  that,  in  each  case,  the  note  thus  arrived  at  maturity  was  understood  by  the  de- 
fendant to  be  the  note  dislionored.  That  he  was  in  fact  misled  is  most  improbable ; 
that  he  ought  not  to  iiave  been  misled  is  quite  certain."  The  only  answer  to  tlie  above 
objection,  given  by  Rui/i/lcs,  C.  J.,  in  the  Court  of  Appeals,  was,  tluit  "  it  is  not  strong 
enough  to  sustain  the  phiintiff's  demand,  without  violating  a  settled  and  salutary  prin- 
ciple of  law.     Tlie  description  of  the  note  should  be  sufficiently  certain  to  eiuiblc  tlio 

indorser  to  know  to  what  one  in  particular  the  notice  applies In  the  present  case, 

the  defendant  indorsed  four  notes  which  were  ahkc  in  all  respects,  excepting  in  7-cgard 
to  the  time  of  payment;  and  yet  the  notices  omitted  to  describe  them  with  reference  to 
that  important  particular,  by  which  only  they  could  be  distinguislied  one  from  the  otlier." 

(v)  Home  Ins.  Co.  v.  Green,  19  N.  Y.  518. 

(w)  Wynn  v.  Alden,  4  Denio,  163,  supra,  p.  473,  note  t. 

(x)  Woodin  v.  Foster,  16  Barb.  146. 

{;/)  Crawford  v.  Branch  Bank,  7  Ala.  205.  Sec  Mainer  v.  Sjiurlock,  9  Rob.  La.  161, 
and  the  cases  cited  infra,  p.  475,  note  b,  and  p.  477,  note  r. 

(2)   Kilgore  v.  Buikley,  14  Conn.  362.     See  the  cases  cited  infra,  p.  475,  note  /). 

(a)  Chitty  on  Bills,  lOtli  Lond.  cd.,  299.  The  cases  cited  in  support  of  this  doctrine 
are  Bromngc  v.  Vaughan,  9  Q.  B.  608;  Mcllersh  r.  Rippen,  7  E.\ch.  578;  and  Smith 
V.  Whiting,  12  Mass.  6. 


i 


CH.  XII.]  THE   FORM   OF   THE   NOTICE.  475 

not,  and  many  authorities  adopt  this  view. (if;)  But  our  opinion, 
independently  of  authorities,  would  be,  that  if  it  were  intended 
to  describe  the  proper  note,  and  the  description  of  the  note  be 
such  that  a  reasonably  prudent  man,  under  the  circumstances 
of  the  case,  ought  to  know  what  note  was  intended  to  be  de- 
scribed, the  misdescription  would  not  invalidate  the  notice,  and 
that  it  would  be  immaterial  whether  the  indorser  were  misled  in 
fact  or  not.  This  must  be  dedueible  mainly  from  the  notice 
itself,  and  by  construction,  although  facts  could  come  in  to  help 
the  construction,  and  therefore  we  should  prefer  to  consider  the 
matter  as  a  question  of  law  for  the  court,  and  there  arc  authori- 
ties to  this  eiFect.(f) 

One  of  the  circumstances  which  would  have  much  effect  here 
would  be  the  existence  or  absence  of  other  notes  by  the  same 
parties,  to  which  the  terms  of  the  notice  would  equally  apply  ; 
and  here,  also,  the  burden  of  proving  this  would  be  upon  the 
party  seeking  to  invalidate  the  notice. (c?)  It  has  been  held  that 
a  notice  addressed  to  an  indorser,  and  describing  him  as  drawer, 
was  insufficient,  (e)  But  notices  describing  the  drawer  as  the 
acceptor,(/)  a  note  as  a  bill,(g-)  a  bill  as  a  note, (A)  were  suf- 


(b)  Stockman  v.  Parr,  11  M.  &  W.  809;  Smith  v.  Whiting,  12  Mass.  6  ;  Eeedy  v. 
Seixas,  2  Johns.  Cas.  337  ;  Bank  of  Rochester  v.  Gould,  9  Wend.  279  ;  McKnight  v. 
Lewis,  3  Barb.  681  ,  Ross  v.  Planters'  Bank,  5  Humph.  335  ;  Moorman  v.  Bank  of 
Alabama,  3  Port.  Ala.  353.     See  Carter  v.  Bradley,  19  Maine,  62. 

(c)  In  Remer  v.  Downer,  23  Wend.  620,  25  id.  277,  the  Court  of  Appeals  reversed 
the  decision  of  the  Supreme  Court,  as  reported  in  21  id.  10,  where  it  was  left  to  the 
jury  to  decide  the  matter;  but  tiie  ground  for  the  reversal  does  not  appear  clearly. 
Branson,  J.,  in  Ransom  v.  Mack,  2  Hill,  587,  thinks  the  decision  proceeded  upon  the 
ground  that  the  court  siiould  have  decided  the  question,  and  not  the  jury.  In  Mills 
V.  Bank  of  U.  S.,  11  Wheat.  431,  the  judge  directed  the  jury  to  find  the  notice  good,  if 

.  no  other  note,  of  the  same  parties,  and  payable  at  the  same  place,  had  been  proved  to 
their  satisfaction  to  exist ;  and  this  charge  was  held  correct.  This  would  seem  to  be 
treating  the  question  as  a  matter  of  law.  It  was  so  treated  in  Bank  of  Alexandria  v 
Swann,  9  Pet  33,  and  in  Cayuga  Co.  Bank  t.  Warden,  1  Comst.  413,  2  Seld.  19. 
See  the  cases  cited  supra,  p.  474,  notey. 

(rf)  Mills  V.  Bank  of  U.  S.,  11  Wheat.  431  ;  Bank  of  Alexandria  v.  Swann,  9  Pet. 
33  ;  Reedy  v.  Seixas,  2  Johns.  Cas.  337  ;  Cayuga  Co.  Bank  v.  Warden,  1  Comst.  413, 
2  Seld.  19.     See  supra,  p.  473,  note  u. 

{e)  Beauchamp  v.  Cash,  1  Dow.  &  R.,  N.  P.  3.     See  next  note. 

(/)  Mellersh  v.  Rippen,  7  Exch.  578.  The  case  of  Beauchamp  v.  Cash,  1  Dow.  & 
R.,  N.  P.  3,  which  held  a  notice  to  be  bad  because  the  indorser  of  a  bill  was  described 
as  the  drawer,  must  be  considered  as  overruled. 

(g)  Mes,senger  v  Southey,  1  Man.  &  G.  76. 

(h)  Stockman  v.  Parr,  11  M.  &  W.  809,  supra,  p.  472,  note  s. 


476  NOTES   AND    BILLS.  [CH.  XH. 

ficient.  Also,  misdescription  of  the  amoiint,(t)  names  of  the 
parties, (j)  date  of  tlie  note,(^')  the  place  where  the  bill  or  note 
was  payable,(/)  or  where  it  was  lying,(wi)  or  where  it  fell  due,(w) 
have  been  held  immaterial.  Whether  a  misstatement  as  to  the 
time  when  the  note  or  bill  was  presented  or  protested  is  suf- 
ficient to  inv^alidate  the  notice  is  unsettled,  the  authorities  behig 
conflicting, (f;)  But  the  reasons  for  holding  the  notice  ineffectual, 
because  by  this  or  any  other  inaccuracy  the  notice  informs  the 
indorser  in  reality  that  he  is  discharged,  seem  to  be  quite  strong. 
There  is  also  a  conflict  on  this  point  with  respect  to  whetlier  this 
is  a  question  of  law  or  fact.(jt7)  Although  a  misstatement  may 
not  be  material  as  regards  the  invalidity  of  the  notice,  yet  it  may 
have  some  eftect  in  other  respects.  Thus,  if  a  notice  misstated 
the  name  of  the  person  on  whose  behalf  it  was  given,  the  effect 
of  this  would  probably  be  to  place  the  party  giving  it  in  the  same 
situation  as  to  the  party  to  whom  it  was  given  as  if  the  repre- 
sentation had  lieen  true,  and  therefore  the  latter  would  have 
every  defence  against  the  former  that  he  would  have  if  the  notice 
had  been  really  given  by  the  party  named. ((?)  Upon  the  whole, 
we  must  content  ourselves  with  saying  that  the  notice  should 
contain  all  the  facts  which  we  have  before  enumerated,  in  order 


(i)  Reedy  v  Seixas,  2  Johns.  Cas.  337  ;  Bank  of  Alexandria  v.  Swann,  9  Pet.  33  ; 
Cayuga  Co.  Bank  v.  Warden,  1  Coinst.  413,  2  Seld.  19  ;  McKniglit  v.  Lewis,  .5  Barb. 
681  ;  Bank  of  Rochester  v.  Gould,  9  Wend.  279  ;  Rowan  v.  Odenheimer,  5  Smedes 
&  M.  44 ;  Snow  r.  Perkins,  2  Mich.  238. 

{j)  Sniitii  V  Whiting,  12  Mass.  6,  where  the  maker,  wiiose  name  was  Jotiiain  Cush- 
man,  was  called  Jotham  Gushing ;  Moorman  v.  Bank  of  Alabama,  3  Port.  Ala.  3.53, 
where  a  subsequent  indorser  was  described  as  Pyron,  when  his  nam«  was  Byron ; 
Dcnnistoun  r.  Steward,  17  How.  606;  Carter  )?.  Bradley,  19  Maine,  62. 

(k)  Mills  V.  Bank  of  U.  S.,  11  Wheat.  431  ;  Ross  v.  Planters'  Bank,  5  Humph.  335 ; 
Tobcy  V.  Lennig,  14  Penn.  State,  483. 

(/)  Bromagc  v.  Vaughan,  9  Q.  B.  609. 

(m)  Rowlands  v.  Springett,  14  M.  &  W.  7. 

(n)  Smith  v.  Whiting,  12  Mass.  6. 

(o)  That  the  notice  was  ineffectual  was  held,  as  a  matter  of  law,  in  Ransom  i\ 
Mack.  2  Hill,  587;  Routh  ».  Robertson,  11  Smedes  &  M.  382 ;  Etting  r.  Schuylkill 
Bank,  2  Penn.  State,  355  ;  Townsend  v.  Lorain  Bank,  2  Ohio  State,  345.  Contra,  On- 
tario Bank  v.  Petric,  3  Wend.  4.'56  ;  Crocker  v.  Getchell,  23  Maine,  392.  The  reason 
tjiven  here  was  that  the  indorser  could  not  have  been  misled.  In  the  former  case,  tho 
matter  was  left  with  the  jury;  in  thclatter,  tlie  court  seem  to  have  decitled  it.  It  nill 
be  seen,  however,  that  in  the  latter  case  the  mistake  was  apparent  uj)on  the  face  of  tho 
notice. 

(/))  See  the  cases  in  note  o,  supra.  % 

(7)   Harrison  v.  Ruscoc,  15  M.  &  W.  231. 


CH.  XII.]         MANNER   IN   WHICH   NOTICE   SHOULD   BE   GIVEN.  477 

that  it  may  be  sure  to  answer  its  purpose ;  but  there  is  much 
uncertainty  as  to  most  of  them,  as  we  have  already  seen.  Where 
the  facts  are  not  in  dispute,  and  are  independent  of  the  matter 
of  description,  misdescription,  or  misinformation,  our  leading 
authorities  hold  that  the  sufficiency  of  the  notice,  if  in  writing, 
is  to  be  determined  by  the  court. (r) 


SECTION   II. 

OF    THE    MANNER    IN    WHICH    NOTICE    SHOULD    BE    GIVEN. 

The  notice  is  usually  in  writing,  but  it  seems  to  be  sufficient 
to  satisfy  the  law  if  it  be  oral  only  ;  (s)  but  it  can  be  much  more 
easily  and  certainly  proved  if  in  writing,  and  in  mercantile  mat- 
ters any  departure  from  established  customs  is  objectionable  and 
generally  suspicious.  Personal  service  is  never  necessary.  It  is 
said  to  be  sufficient  to  leave  a  written  notice  at  the  dwelling  or 
counting-room  of  the  parties,  or  a  verbal  notice  with  any  one 
who  may  be  found  there.  (^)  This  rule  must,  however,  receive 
a  reasonable  interpretation.  It  would  not,  for  example,  be  suf- 
ficient to  leave  the  notice  with  one  known  to  be  casually  there 
for  a  temporary  purpose  ;  nor  with  one  who  was  obviously  unable 
to  comprehend  or  deliver  a  message.  Notice  is  usually  sent  by 
mail  in  London,  and  in  this  country  where  the  sender  and  the 


(r)  Dole  I'.  Gold,  5  Barb.  490;  Wynn  v.  Alden,  4  Denio,  163;  Townsend  v. 
Lorain  Bank,  2  Ohio  State,  345  ;  Piatt  v.  Drake,  1  Doup;.  Mich.  296 ;  Brewster  v. 
Arnold,  1  Wise.  264.  It  seems  to  have  been  so  treated  in  Gilbert  v.  Dennis,  3  Met.  495; 
Pinkham  v.  Macy,  9  Met.  174.  Contra,  it  would  seem,  Paul  v.  Joel,  3  H.  &  N.  455  ; 
De  Wolf  V.  Murray,  2  Sandf.  166.  In  McKnight  v.  Lewis,  5  Barb.  490,  the  distinc- 
tion is  taken  between  a  notice  defective  on  its  face  and  one  in  which  the  note  is  mis^le- 
scribed.  The  case  of  Cayuga  Co.  Bank  v.  Warden,  1  Comst.  413,  2  Seld.  19,  is  relied 
upon  ;  but  in  that  case  the  court  decided  the  question  themselves.  It  would  seem  that 
an  indorscr  might  equally  be  deceived,  where  the  notice  docs  not  convey  sufficient  in- 
formation respecting  the  note  or  the  circumstances  attending  its  dishonor,  as  well  as 
where  it  contains  some  error  or  mistake. 

(s)  Cuyler  v.  Stevens,  4  Wend.  566;  Woodin  v  Foster,  16  Barb.  146;  Shaw, 
C.  J.,  Gilbert  v.  Dennis,  3  Met,  495  ;  Glasgow  v.  Pratte,  8  Misso.  336  ;  Metcalfe  v. 
Richardson,  11  C.  B.  1011  ;  Caunt  v.  Thompson,  7  id.  400;  Housegb  v.  Cowne, 
3  M.  &  W.  348  ;  Phillips  v.  Gould,  8  Car.  &  P.  355  ;  Smith  v.  Boulton,  1  Hurl.  & 
W.  3. 

(t)  See  infra. 


478  NOTES  AXD   BILLS.  [CH.  XD. 

party  addressed  do  not  live  in  the  same  town.(?/)  And  if  prop- 
erly sent  by  mail,  the  law,  which  for  certain  purposes  seems  to 
guarantee  a  discharge  of  their  duties  by  persons  employed  by 
the  State,  or  to  assume  such  due  discharge  as  a  fact,  holds  the 
sender  relieved  from  all  consequences  of  a  miscarriage,  as  has 
been  already  intimated  in  respect  to  demand.  In  other  words, 
tlie  sender  is  bound  to  use  due  diligence ;  and  on  this  point  it  is 
sufficient  diligence  if  the  letter  be  put  into  a  regular  post-office ; 
for  it  cannot  be  asked  of  any  sender  that  he  should  have  any 
oversight  of,  or  interference  with,  the  public  service  of  the  post- 
office.  And  therefore  he  is  held  to  no  liability  for  accident 
there,  however  it  may  happen. (*') 

The  same  rule  would  undoubtedly  apply  to  an  international 
mail  service  by  water.  But  if  the  sender  prefer  sending  the  no- 
tice by  his  own  messenger,  or  by  any  other  means,  he  may  do 
so ;  (lo)  it  is  not,  however,  quite  certain  what  his  responsibility 
now  is.     It  may  be  that  the  due  diligence  required  of  him  is  sat- 


(ii)  Sec  infra,  pp.  481,  482. 

(r)  In  the  following  cases  it  was  held  that  putting  a  letter,  properly  directed,  and  at 
a  proper  time,  in  the  post-office  was  sufficient,  without  proof  of  its  reception.  Saun- 
derson  v.  Judge,  2  H.  Bl.  509  ;  Parker  v.  Gordon,  7  East,  385  ;  Bussard  v.  Levering, 

6  Wheat.  102  ;  Lindenberger  v.  Beall,  id.  104  ;  Munn  v.  Baldwin,  6  Mass.  316  ;  Stan- 
ton V.  Blossom,  14  id.  116  ;  Ogdcn  v.  Cowley,  2  Johns.  274  ;  Ellis  v.  Commercial  Bank, 

7  How.  Miss.  294;  Commercial  Bank  v  Strong,  28  Vt.  316.  See  Walters  r.  Brown, 
15  Md.  28.5  ;  Haly  v.  Brown,  5  Penn.  State,  178;  Smyth  i-.  Hawthorn,  3  Kawle,  355  ; 
Hartford  Bank  v.  Hart,  3  Day,  491.  Sec  Shepard  v.  Hall,  1  Conn.  329.  In  Miller 
V.  llackley,  5  Johns.  375,  the  notary  testified  that  it  was  his  usual  practice  to  mail 
notices  to  indorsers  living  at  a  distance  the  evening  of  the  day  of  protest,  and  that  he 
had  no  doubt  but  that  he  had  done  so  with  the  notice  in  the  case  in  suit,  though  he 
could  not  recollect  positively.  Held  sufficient..  But  in  Dale  v.  Lubbock,  1  Barnard. 
199,  Raymond,  C.  J.  "did  not  think  the  bare  sending  of  a  letter  to  the  post-house  would 
be  sufficient,  without  some  further  proofs  of  the  acceptor's  receiving  it."  In  the  follow- 
ing cases  there  was  evidence  of  a  delay  in  the  transmission  by  mail.  Dickins  v.  Beal, 
10  Pet.  572 ;  Mount  Vernon  Bank  v.  Holdcn,  2  R.  I.  467  ;  Dobree  v.  Eastwood,  3  Car. 
&  P.  250;  Stocken  w.  Collin,  7  M.  &  W.  515;  Woodcock  v.  Houldsworth,  16  M.  & 
W.  124.  In  the  following  cases  there  was  evidence  that  the  notice  was  not  received. 
Shed  V.  Brett,  1  Pick.  401  ;  Rcnshaw  v.  Triplett,  23  Misso.  213;  Chapman  v.  Lips- 
combe,  1  Johns.  294,  where,  from  the  circumstances  of  the  case,  the  notice  could  not 
have  come  to  thc-hands  of  the  party  to  whom  it  was  sent.  In  Jones  v.  Wardcll,  6 
Watts  &  S.  399,  there  was  a  delay  owing  to  the  fact  that  the  wrong  person,  of  the 
same  name  with  the  indorser,  took  the  notice  out  of  the  post-office.  The  indorscr  was 
held. 

,  (w)  Jarvis  v.  St.  Croix  Manuf  Co.,  23  Maine,  287  ;  Bancroft  v.  Hall,  Holt,  N.  P. 
476  ;  Pearson  v.  Crallan,  2  J.  P.  Smith,  404;  Whitehead,  J.,  Hazelton  Co.  v.  Ilycrson, 
Spencer,  129. 


CH.  XII.]        MANNER  IN   WHICH   NOTICE   SHOULD   BE   GIVEN.  479 

isfied  with  reasonable  care  in  selecting  his  messenger  or  servant ; 
but  perhaps  it  should  be  held  that  he  may  select  either  to  employ 
a  public  servant,  and  then  the  responsibility  is  off  his  hands  as 
soon  as  the  notice  is  delivered  to  the  mail ;  or  he  may  elect  to 
send  it  by  his  own  private  conveyance,  and  then  his  responsibility 
continues  until  due  delivery  to  the  person  to  be  notified. (.r)  We 
think  this  latter  view  is  more  consonant  with  the  true  principles 
of  the  case,  and  should  be  unwilling  to  admit  an  exception  to  it, 
unless,  perhaps,  where  the  sender  could  not  be  said  to  elect,  be- 
cause there  was  no  public  conveyance  between  him  and  the  person 
to  be  notified. (v/)  Then  it  becomes  his  duty  to  send  the  notice 
in  the  best  and  safest  way  he  can  ;  and  if  he  exercises  a  sound 
discretion  in  selecting  and  in  using  that  way,  he  miglit  be  safe 
from  the  consequences  of  a  miscarriage  which  could  not  be  at- 
tributed to  him  as  a  fault.  Where  it  sliould  be  sent  by  mail,  but 
is  sent  by  a  private  messenger,  it  seems  that  if  it  arrives  on  the 
same  day  on  which  the  mail  would  bring  it,  and  later  in  the  day, 
it  is  still  sufficient  if  it  comes  within  business  hours  ;  (z)  but  if  it 
does  not  come  until  the  day  after,  this  delay  vitiates  the  notice. (a) 

(x)  In  Van  Vechten  v.  Pruyn,  3  Kern.  549,  555,  Johnson,  J.  said  :  "  Where  the  ser- 
vice is  by  mail,  the  duty  of  the  holder  is  discharged  by  depositing  the  notice  in  the 
post-office,  properly  directed.  Whether  it  ever  reaches  the  indorscr  or  not,  his  liability 
is  fixed.  On  the  other  hand,  where  personal  notice  is  to  be  given,  the  obligation  is 
upon  the  holder  to  leave  the  notice,  either  with  the  party  to  be  charged,  or  at  his  resi- 
dence or  place  of  business.  In  these  cases,  there  is  no  risk  in  transmission  to  be  borne 
by  the  indorscr." 

{y)  In  Bank  of  Columbia  v.  Lawrence,  1  Pet.  578,  584,  Thompson,  J.  said  :  "  In  cases 
where  the  party  entitled  to  notice  resides  in  the  country,  unless  notice  sent  by  mail  is 
sufficient,  a  special  messenger  must  be  employed  for  the  purpose  of  serving  it.  And 
we  think  that  the  present  case  is  clearly  one  which  docs  not  impose  upon  the  plaintiffs 
such  duty.  We  do  not  mean  to  say  no  such  cases  can  arise,  but  they  will  seldom  if 
ever  occur,  and  at  all  events  such  a  course  ought  not  to  be  required  of  a  holder,  except 
under  very  special  circumstances.  Some  countenance  has  lately  been  given  to  this 
practice  in  England  in  extraordinary  cases,  by  allowing  the  holder  to  recover  of  the 
indorscr  the  expenses  of  serving  notice  by  a  special  messenger.  The  case  of  Pearson 
V.  Crallan,  2  J.  P.  Smith,  404,  is  one  of  this  description.  But  in  that  case  the  court  did 
not  say  that  it  was  necessary  to  send  a  special  messenger,  and  it  was  left  to  the  jury  to 
decide  whether  it  was  done  wantonly  or  not.  The  holder  is  not  bound  to  use  the  mail 
for  the  purpose  of  sending  notice.  He  may  employ  a  special  messenger  if  he  pleases, 
but  no  case  has  been  found  where  the  English  courts  have  directly  decided  that  he 
must.  To  compel  the  holder  to  incur  such  expense  would  be  unreasonable,  and  the 
policy  of  adopting  a  rule  that  will  throw  such  an  increased  charge  upon  commercial 
paper  on  the  party  bound  to  pay,  is  at  least  very  questionable." 

(z)  Bancroft  v.  Hall,  Holt,  476. 

(a)  See  Bceching  v.  Gower,  Holt,  315,  note ;  Darbishire  v.  Parker,  6  East,  3.  In  Jarvis 


480  NOTES   AND   BILLS.  [CH.  XIL 

If  the  want  of  an  early  post  would  ca\ise  a  considerable  delay, 
and  the  parties  were  near,  so  that  notice  could  easily  and  clieaply 
oe  sent  by  private  hand,  we  should  say,  however,  that  it  ought  to 
be  sent  so;  and  a  long  delay  could  not  be  justified. (6)  It  has 
been  held,  tliat,  where  a  private  messenger  was  employed,  a  holder 
might  in  such  a  case  charge  the  person  addressed  a  reasonable 
sum  for  the  expense  of  doing  so.(c)  It  has  been  held,  that  a  bank 
which  liolds  a  note  for  collection,  and  exercises  due  care  iu 
selecting  a  notary  to  whom  it  is  sent  for  demand,  protest,  and  no- 
tice, is  not  answerable  for  the  default  of  the  notary.  The  notary 
public  stands  in  some  degree  on  the  footing  of  the  mail  service, 
as  an  agent  or  instrument  provided  by  law,  and  therefore  to  a 
certain  extent  guaranteed  by  law.  The  authorities  are  not  uni- 
form on  this  question  ;  some  hold  the  bank  liable  for  the  proper 
conduct  of  the  notary  employed  ;  and  those  which  hold  the  bank 
discharged  by  due  care  in  selection  seem  to  apply  the  same  rule 
to  any  person  selected  with  due  care  as  a  competent  agent,  (rf) 

V.  St.  Croix  Manuf.  Co.,  23  Maine,  287,  a  notice  had  been  forwarded  part  of  the  way  by 
a  private  messenger.  By  the  reguhxr  course  of  the  mail  the  notice  might  liave  been 
received  some  days  before  its  actual  reception.  Held,  that  it  was  incumbent  upon  the 
plaintiff  to  have  explained  this  delay,  and  not  having  done  so,  he  was  nonsuited. 

{h)  In  some  cases  it  has  been  held  that  it  was  necessary  to  make  use  of  a  special  mes- 
senger, as  wlicn  the  indorser  lived  at  a  considerable  distance  from  a  post-office.  Fish 
V.  Jackman,  19  Maine,  467  ;  Farmers'.  &c.  Bank  v.  Butler,  3  Littell,  498  ;  Barker  v.  Hall, 
Mart.  &  Y.  183  ;  Bedford  v.  Hickman,  1  Yerg.  166.  See  Farmers',  &c.  Bank  v.  Battle, 
4  Humpli  86.  But  ihese  may  be  doubted,  as  it  will  be  seen  hereafter  that  many  author- 
ities hold  that,  in  such  cases,  it  will  be  sufficient  to  send  the  notices  to  the  nearest  post- 
office.  In  State  Bank  v.  Ayers,  2  Halst.  130,  Ford,  J.  said  :  "  If  persons  residing  far 
from  a  post-town,  aside  from  the  common  walks  of  gregarious  commerce,  will  give 
their  names  in  guaranty  of  commercial  paper,  it  is  better  that  they  should  be  held  to 
inquire  for  letters  at  the  nearest  post-office,  about  the  time  such  paper  conies  to  ma- 
turity, than  that  the  holder  should  be  compelled  to  send  a  special  messenger  fifty  or 
one  hundred  and  fifty  miles  to  serve  personal  notice,  or  that  an  establislied  system 
of  notices,  sufficiently  complex  already,  siiould  be  forced  to  give  way  to  the  introduc- 
tion of  novel  exce[)tions,  imposing  burdensome,  expensive,  and  hazardous  duties  on 
all  men  of  business,  merely  out  of  favor  to  eccentric  residences." 

(c)  Pearson  v.  Crallan,  2  J.  P.  Smith,  404,  where  it  was  left  to  the  jury  to  decide 
wliethcr  the  s[)e(ial  messenger  was  necessary,  and  whether  the  charge  was  reasonable. 

(d)  Builcmire  v.  Bank  of  United  States,  4  Whart.  10.");  Jackson  v.  Union  Bank  of 
Maryland,  6  Harris  &  J.  146  ;  East  Haddam  Bank  v.  Scovil,  12  Conn.  303  ;  Wingato 
V.  Mechanics'  Hank,  10  Barr,  104  ;  Fabcns  v.  Mercantile  Bank,  23  Pick.  330;  Dor- 
Chester  &  Milton  Bank  v.  New  England  Bank,  1  Cash.  177;  Warren  Hank  v.  Suffolk 
Bank,  10  Cush.  582.  It  was  so  held  by  the  Supreme  Court  of  New  York  in  Allen  v. 
Merchants'  Bank,  15  Wend.  482.  The  decision  in  this  case  was,  however,  reversed  by 
the  Court  of  Errors  by  a  vote  of  14  to  10,  Chancellor  Walworth  delivering  an  opinion 


CH.  XII.]        MANNKR    IN    WHICH   NOTICE   SHOULD    BE    GIVEN.  481 

III  London,  it  is  onou^li  if  the  notice  is  put  into  any  autliorized 
receiving-house  ;  but  it  has  been  said  not  to  be  enough  to  deliver 
it  to  a  "bellman"  in  the  streets. (/')  Subsequently,  this,  how- 
ever, seems  to  be  doubted, (^)  and  Lord  Denman  calls  a  bellman 
"  an  ambulatory  ])ost-offiee."(A)  The  true  question  mu^t  be 
this,  —  Is  a  bellman  an  officer  of  the  state,  and  in  substance  an 
authorized  receiver  for  the  post-office  ?  If  not,  he  should  stand 
upon  the  same  footing  as  any  other  carrier.  Probably  usage 
would  have  some  effect  on  a  question  of  this  kind. 

Proof  that  a  letter  was  put  on  a  table  with  others,  and  that  it 
was  the  regular  course  of  business  of  the  porter  of  the  place  to 
take  all  letters  so  deposited  to  the  post-office,  was  held  to  be  in- 
sufficieut ;  but  it  was  intimated  that  the  evidence  of  tiie  porter, 
that  he  always  carried  the  letters,  without  any  distinct  recollec- 
tion of  this  one,  might  have  made  the  proof  sufficient.({)     If  the 


in  favor  of  aflSrming  the  judgment  of  the  Supreme  Court.  22  Wend.  21.5.  This  decis- 
ion of  the  Court  of  Errors  is  regarded  as  having  settled  the  law  in  New  York.  See 
Hoard  v.  Garner,  3  Sandf.  179  ;  Montgomery  Co.  Bank  v.  Albany  City  Bank,  8  Barb. 
396,  3  Seld.  459. 

(/)  In  Hawkins  v.  Rutt,  Peake,  Cas.  186,  Lord  Kenyan  held,  that  evidence  that  a 
letter  containing  bills  of  exchange  was  delivered  to  the  bellman  was  no  proof  that  the 
letters  arrived  at  the  post-office. 

(g)  In  Pack  i'.  Alexander,  3  Moore  &  S.  789,  a  letter  containing  bank-notes  was 
given  to  the  bellman,  who  put  it  into  his  mail-bag.  The  bellman  testified  that  the 
bags  arc  delivered  locked  at  the  post-office,  and  that  a  letter  once  put  in  could  not  be 
abstracted  without  the  aid  of  the  key.  The  jury  found  for  the  plaintilf,  on  the  ground 
that  there  was  no  evidence  that  the  letter  ever  reached  the  post-office.  The  court  set 
aside  the  verdict  as  against  evidence.  The  cases  of  Hawkins  v.  Kutt,  and  Pack  v. 
Alexander,  were  not,  it  will  be  seen,  cases  involving  the  delivery  of  a  nolice  to  a 
postman,  but  letters  containing  money  ;  and  it  may  well  be  doubted  whether  suet 
strictness  would  be  required  in  the  former  case  as  in  the  latter.  In  Scott  v.  Lifford, 
9  East,  347,  1  Camp.  246,  the  plaintiff,  living  in  London,  sent  the  notice  to  the  defend- 
ant, wiio  resided  in  Shadwell,  by  the  twopenny-post.  Held  sufficient.  Le  Blanc,  J. 
said,  9  East,  348  :  ''  I  cannot  rule  that  the  holder  of  a  bill  may  not  avail  himself 
of  the  conveyance  by  the  twopenny-post."  So  the  court  said,  1  Camp.  249,  that 
"  they  did  not  see  why,  when  the  parties  reside  in  London,  or  the  near  neighborhood,  the 
party  sending  the  notice  should  not  be  allowed  to  avail  himself  of  the  convenience  of 
the  twopenny-post,  but  should  be  obliged  to  despatch  a  special  messenger."  In  Smith 
v.  MuUctt,  2  Camp.  208,  the  notice  was  sent  by  the  twopenny-post,  and  no  objection 
was  taken  to  this  ;  but  the  case  turned  on  another  point.  In  Kilton  v.  Fairclough,  2 
Camp.  633,  it  was  held  that  a  notice  might  be  sent  by  the  twopenny-post  to  any  place 
within  its  limits,  and  that  distance  was  immaterial.  In  Dobree  v.  Eastwood,  3  Car.  & 
P.  250,  the  notice  was  sent  by  the  same  conveyance,  the  parties  all  residing  in  the  same 
place.     It  was  proved  that  there  was  an  actual  delay,  but  the  notice  was  held  sufficient. 

(A)  Skilbeck  v.  Garbett,  7  Q.  B.  846,  849. 

(i)  Hetherington  r.  Kemp,  4  Camp.  193.     In  Skilbeck  v.  Garbett,  7  Q.  B.  846,  a 

Vol.  I.— 2  F 


482  NOTES   AND   BILLS.  [CH.  KFL 

parties  live  in  the  same  town,  the  American  cases  hold,  very  gen. 
erally,  that  the  mail  is  not  the  proper  instrument,  or  rather  that  it 
has  no  advantage  in  law  over  any  other  means. (j)    So,  according 


clerk  of  the  plaintiff  testified  that,  in  the  general  course  of  business  at  the  plaintiflTs 
office,  letters  were  made  up  by  him,  and  the  public  postman  called  every  day  for  the 
letters,  which  were  placed  in  a  box  in  the  room  where  the  witness  sat,  and  were  taken 
from  the  box  by  the  postman.  The  witness  testified  that  the  letter  in  question  was  made 
up  in  the  usual  course,  but  no  further  evidence  was  given  as  to  the  sending.  Held 
sufiScient.  See  also  Brailsford  v.  Williams,  15  Md.  150;  Bell  v.  Hagerstown  Bank, 
7  Gill,  216  ;  Flack  v.  Green,  3  Gill  &  J.  474  ;  Miller  v.  Hackley,  5  Johns.  375,  supra, 
p.  478,  note  v.  In  Commercial  Bank  v.  Strong,  28  Vt.  316,  it  was  proved  to  be  the 
duty  of  one  clerk  of  a  bank  to  fill  out  and  direct  notices,  and  to  place  them  on  his  desk. 
It  was  also  proved  to  be  the  duty  of  another  clerk  to  take  the  notices,  so  left  daily,  to 
tlie  post-office.  The  notice  was  proved  to  have  been  left  in  the  usual  place  on  a  cer- 
tain day,  and  afterwards  on  the  same  day  had  been  removed.  The  clerk  whose  duty 
it  was  to  carry  letters  to  the  post-office  testified  that  his  usual  practice  was  to  carry  them 
promptly,  but  he  could  not  swear  that  he  had  carried  the  notice  in  the  case  in  suit. 
Held  sufficient  proof  of  notice.  Redjield,  C.  J.  criticises  the  propositions  laid  down 
in  Chitty  on  Bills, — that  it  is  incumbent  upon  the  holder  "to  prove  distinctly  and 
by  positive  evidence  that  due  notice  was  given,  and  that  it  cannot  be  left  to  inference  or 
presumption";  and  that  "the  party  who  puts  a  letter  giving  notice  of  the  dishonor 
of  a  bill  into  the  post-office  must  be  able  to  swear  to  a  certainty,  and  not  doubtfully, 
that  he  put  the  letter  in  himself,  and  not  that  he  was  doubtful  whether  he  did  not  de- 
liver it  to  another  clerk  to  put  it  in,"  —  declaring  them  unsupported  by  the  authorities 
referred  to.  In  Mount  Vernon  Bank  v.  Holden,  2  R.  I.  467,  the  notice  was  delivered 
to  an  assistant  of  the  postmaster,  in  a  room  adjoining  the  office,  such  being  the  usage 
in  that  place.  Held  sufficient,  although  there  was  a  delay  in  the  transmission  there. 
In  Hawkes  v.  Salter,  4  Bing.  715, 1  Moore  &  P.  750,  the  holder's  clerk,  who  copied  the 
notice,  said  that  it  was  put  into  the  post-office,  but  could  not  recollect  whether  by  him- 
self or  by  another  clerk.  Held  not  sufficient  evidence  of  its  being  deposited  in  the 
post-office. 

(j)  Peirce  i;.  Pendar,  5  Met.  352 ;  Ireland  v.  Kip,  10  Johns.  490,  11  id.  231.  See 
Smedes  v.  Utica  Bank,  20  id.  372  ;  Cayuga  Co.  Bank  v.  Pennett,  5  Hill,  236;  Ilyslop 
V.  Jones,  3  McLean,  96  ;  Shepard  r.  Haley,  1  Conn.  367  ;  Manchester  Bank  v.  Fel- 
lows, 8  Foster,  302;  Green  r  Darling,  15  Maine,  141  ;  Davis  v.  Gowen,  19  id.  447; 
Kramer  v.  M'Dowell,  8  Watts  &  S.  138;  Haly  v.  Brown,  5  Penn.  State,  178  ;  Bell 
v.  Hagerstown  Bank,  7  Gill,  216;  Walters  v.  Brown,  15  Md.  285;  Farmers',  &c. 
Bank  v.  Butler,  3  Littell,  498;  Clay  v.  Oakley,  17  Mart.  La.  137;  Miranda  ;•.  City 
Bank,  6  La.  740;  Porter  v.  Boyle,  8  id.  170;  Manadue  v.  Kitchen,  3  Rob.  La.  261  ; 
Saul  T.  Brand,  1  La.  Ann.  95  ;  Curtis  v.  State  Bank,  6  Blackf.  312  ;  Costin  v.  Ran- 
kin, 3  Jones,  N.  Car.  387;  Stephenson  r.  Primrose,  8  Port.  Ala.  155;  Foster  v. 
McDonald,  3  Ala  34;  Brindley  v.  Barr,  3  Harring.  Del.  419;  Remington  v.  Har- 
rington, 8  Ohio,  507.  But  where  there  arc  two  post-offices  in  the  same  town,  and  the 
notice  would  be  transmitted  from  the  one  to  the  other,  in  the  ordinary  cour.ie,  in  order 
to  reach  the  indorser,  such  a  method  of  transmission  is  proper.  Ransom  v.  Mack,  2 
Hill,  587.  Sec  Seneca  Co.  Bank  r.  Neass,  5  Denio,  329,  3  Comst.  442.  Shnw,  C.  J., 
Peirce  v.  Pendar,  5  Met.  352 :  The  penny-post  might  be  u.sed  in  such  case.  Sec  the 
cases  of  Bank  of  Columbia  v.  Lawrence,  1  Pet.  578;  Brindley  v.  Barr,  3  Harring.  Del. 
419  i  Curtis  ».  State  Bank,  6  Blackf.  312  ;  Farmers',  &c.  Bank  '.  Butler,  3  Littell,  498 ; 


11 


CII.  XII.]        MANNER   IN    WHICH   NOTICE    SHOULD    BE    GIVEN.  483 

to  one  authority,  if  the  party  addressed  duly  receive  the  notice, 
or  if  the  jury  can  properly  presume  from  the  facts  of  the  case  that 
it  was  received,  the  mere  manner  in  which  it  was  sent  is  wholly 


Gist  V.  Lybrand,  3  Ohio,  307  ;  Louisiana  State  Bank  v.  Rowel,  18  Mart.  La.  506  ;  Bell 
V.  Hagerstown  Bank,  7  Gill,  216.  In  Walters  v.  Brown,  15  Md.  285,  it  was  held,  that 
where  there  was  a  penny-post,  the  mail  might  he  used  as  a  method  of  transmission,  and 
that  the  same  rule  applied  as  to  the  risk  in  such  cases  as  where  the  parties  resided  in 
different  towns.  Where  the  indorser  and  holder  live  in  different  towns,  the  notice  may 
be  deposited  in  the  post-office  of  the  town  where  the  indorser  lives.  Stamps  v.  Brown, 
Walker,  526  ;  Gindrat  v.  Mechanics'  Bank,  7  Ala.  324 ;  Foster  v.  McDonald,  8  id.  376, 
Timms  v.  Delisle,  5  Blackf.  447.  Contra,  Patrick  v.  Beazley,  6  How.  Miss.  609  ;  Hogatt 
V.  Bingamun,  7  id.  565  ;  M'Crummen  v.  M'Crummen,  17  Mart.  La.  158.  In  Greene  v. 
Farley,  20  Ala.  322,  it  was  held,  that  if  the  indorser  and  owner  live  in  the  same  place, 
but  the  note  is  protested  in  another  by  a  notary,  the  latter  may  still  transmit  notice  to 
the  indorser  by  mail.  Where  the  parties  live  in  different  towns,  but  use  the  post-office  in 
the  same  town,  the  mail  may  be  used  as  a  place  of  deposit  for  the  notice.  Carson  v. 
Bank  of  Alabama,  4  Ala.  148;  Bank  of  Columbia  v.  Lawrence,  1  Pet.  578;  Jones  v. 
Lewis,  8  Watts  &  S.  14;  Timms  v.  Delisle,  5  Blackf.  447  ;  Bell  v.  State  Bank,  7  Blackf. 
456;  Fisher  v.  State  Bank,  id.  610 ;  Barret  v.  Evans,  28  Misso.  331  ;  Foster  v.  Sineath,  2 
Rich.  338.  Contra,  Laporte  v.  Landry,  17  Mart.  La.  359  ;  Louisiana  State  Bank  v.  Rowel, 
18  id.  506;  Pritchard  v.  Scott,  19  id.  491  ;  Glenn  v.  Thistle,  1  Rob.  La.  572  ;  Harris  v. 
Alexander,  9  id.  151  ;  Farmers',  &c.  Bank  v.  Butler,  3  Littcll,  498.  But  these  cases  are 
now  overruled.  New  Orleans  Canal,  &c.  Co.  v.  Barrow,  2  La.  Ann.  326 ;  Hepburn  v. 
Ratliff,  id.  331  ;  Bird  v.  McCalop,  id.  351  ;  New  Orleans,  &c.  R.  Co.  v.  Patton,  id.  352  ; 
Lathrop  v.  Delee,  8  id.  170;  Bank  of  Louisiana  v.  Tournillon,  9  id.  132;  Bondurant  v, 
Everett,  1  Met.  Ky.  658.  In  Hartford  Bank  v.  Stedman,  3  Conn.  489,  a  note  was  dis- 
counted at  the  Hartford  Bank,  and  protested  at  Middletown,  at  a  bank  in  which  place  it 
was  payable.  The  notary  in  Middletown  directed  the  notice  to  the  indorser,  leaving  the 
place  blank,  and  enclosed  it  to  the  Hartford  Bank.  The  cashier  of  the  latter  bank  inserted 
the  word  "  Hartford,"  the  indorser  living  there,  and  deposited  the  notice  in  the  post-office. 
Held  sufficient.  So  Manchester  Bank  v.  Fellows,  8  Foster,  302  ;  Warren  v.  Oilman, 
17  Maine,  360;  Eagle  Bank  v.  Hathaway,  5  Met.  212.  But  in  Sheldon  v.  Benham,  4 
Hill,  129,  the  notary  protested  a  note  in  the  place  where  it  was  payable,  and  forwarded 
notices  for  all  the  indorsers  residing  at  a  different  place  to  the  fourth  indorser.  He 
deposited  them  in  the  post-office  in  the  place  where  the  indorsers  lived.  Held  insuffi- 
cient. If  a  note  is  payable  at  a  bank  in  the  same  place  where  the  indorser  lives,  notice 
to  hira  cannot  be  deposited  in  the  post-office.  Bowling  v.  Harrison,  6  How.  248;  State 
Bank  v.  Slaughter,  7  Blackf  133.  But  in  such  case,  a  usage  to  deposit  notices  in  the 
post-office  will  bind  the  parties  to  the  note.  Chicopee  Bank  v.  Eager,  9  Met.  583  ;  Gin- 
drat V.  Mechanics'  Bank,  7  Ala.  324.  See  Bank  of  U.  S.  v.  Norwood,  1  Harris  «Sb  J. 
423;  Bell  v.  Hagerstown  Bank,  7  Gill,  216.  The  usage  should  be  clearly  proved. 
Thus,  in  Bowling  v.  Harrison,  6  How.  248,  there  was  a  memorandum  attached  to  the 
note,  that  "  the  third  indorser,  J.  P.  H.,  lives  at  Vicksburg."  A  usage  of  the  banks 
in  Vicksburg  was  proved,  to  the  effect  that  personal  notice  was  served  on  the  indorsers 
living  in  that  place,  unless  there  was  a  memorandum  on  the  note  or  bill  designating 
the  place  to  which  the  notice  was  to  be  sent.  It  was  contended  that  the  jury  might  be 
allowed  to  infer,  from  the  facts  of  the  case,  that  there  was  a  usage  in  such  cases  as  the 
one  in  suit  to  deposit  notices  in  the  post-office ;  but  it  was  held  that  there  was  no  evi- 
dence from  which  a  jury  would  be  justified  in  drawing  such  inference.     But  in  Wilcox 


484  NOTES   AND   BILLS.  [CH.  XE. 

immaterial.  (^')  But  if  sent  bj  mail  where  both  parties  live  in 
the  same  town,  it  would  seem  that  the  sender  remains  responsi- 
ble for  the  due  delivery  of  the  notice.  Although,  however,  the 
general  rule  may  be  considered  as  well  settled,  yet  the  decisions 
of  our  courts  are  by  no  means  unanimous  with  regard  to  its  ap- 
plication. One  class  of  authorities,  which  adheres  with  much 
strictness  to  the  rule,  declares  that  the  true  principle  by  which 
each  case  is  to  be  decided  is  this,  —  that  the  post-office  is  to  be 
used  as  a  means  of  transmission  only,  and  not  a  place  of  de- 
posit. (/)  Other  authorities,  regretting  that  the  rule  was  origi- 
nally adopted,  declare  that  it  is  too  well  settled  to  be  overturned, 
but  decide  that  its  operation  is  not  to  be  extended.  The  true 
test  would,  then,  seem  to  be  only  the  fact  whether  the  holder  and 
the  party  to  whom  the  notice  is  to  be  sent  reside  in  the  same 
town  or  not.(m)  Originally,  perhaps,  notice  could  never  be  sent 
through  the  post-office,  and  the  first  relaxation  was  to  allow  this 
method  of  communication  where  the  parties  resided  in  different 
towns. (w)  We  are  aware  of  no  good  reason  for  any  difference 
between  our  law  and  that  of  England,  except  that  the  English 
law  is  in  that  respect  very  much  London  law,  and  in  that  vast 
city  the  public  arrangements  for  speedy  delivery  to  everybody  give 
peculiar  weight  to  all  the  reasons  which  would  induce  a  resort 
to  the  post-office  anywhere.  In  this  country,  generally  at  least, 
a  use  of  the  post-office  in  the  same  town  would  imply  a  delay  of 
a  day,  which  may  be  avoided  by  employing  a  clerk  or  messenger. 
It  seems  to  be  held  in  England,  and  for  reasons  which  would 
probably  be  deemed  sufficient  in  this  country  wherever  they  were 
applicable,  that  if  there  was  a  communication  across  the  ocean 
by  regular  lines  of  packets,  under  steam  or  canvas,  the  vessels 
composing  that  line  might  be  used,  and  a  holder  might  delay  a 


V.  M'Nutt,  2  How.  Miss.  776,  it  was  held  that  a  custom  among  the  notaries  of  a  par- 
ticular city  to  deposit  notice  in  the  post-office  for  an  indorser  could  not  make  the  prac- 
tice lawful.  Changed  in  New  York  by  statute  in  1857.  The  usage  should  be  certain 
and  clear.     Thorn  v.  Rice,  If)  Maine,  2f)3. 

(k)  Ilyslop  V.  Jones,  3  McLean,  96.  See  Hill  v.  Crnry,  id.  582;  Foster  r.  McDon- 
ald, 5  Ala.  376 ;  Bradley  v.  Davis,  26  Maine,  45  ;  Bank  of  U.  S.  v.  Corcoran,  2  Pet. 
121  ;  Manchester  Bank  r.  Fellows,  8  Foster,  302;  Whiteford  u.  Burckmyer,  1  Gill,  127. 

(/)  IJronson,  J.,  Kansom  v.  Mack,  2  Hill,  587  ;  Farmers',  &c.  Bank  v.  Battle,  4 
Humph.  86. 

(m)  Shaw,  C.  J.,  Eagle  Bank  v.  Hathaway,  5  Met.  212. 

(n)  Bronson,  J.,  Ransom  v.  Mack,  2  Hill,  587. 


CH.  XII.J        MANNER   IN   WHICH    NOTICE    SHOULD    BE    GIVEN.  485 

reasonable  time  for  the  next  regular  ship ;  and  the  fact  tliat  a 
casual  ship  which  might  have  taken  the  notice  sailed  sooner  and 
arrived  sooner  would  not  vitiate  the  notice. (o)  If  the  delay 
caused  in  this  way  were  very  great,  and  the  probability  of  tliis 
should  have  been  anticipated,  as  if  the  holder  delayed  a  fortnight 
for  a  regular  sailing  packet,  and  a  casual  but  safe  steamer  de- 
parted in  a  day  or  two,  such  delay  would  no  doubt  be  considered 
unreasonable,  and  therefore  inexcusable. 

The  postmark  on  a  letter  is  prima  facie  evidence  that  the 
letter  was  deposited  in  the  office  on  that  day,  but  is  open  to 
rebutter. (;>) 

Curious  questions  have  arisen  as  to  the  address.  If,  for  in- 
stance, the  sender  has  no  better  means  of  knowing  liow  to 
address  a  drawer  than  by  his  name  as  written  by  himself  on 
the  bill,  and  through  an  error  caused  by  the  indistinctness  of 
the  writing  the  notice  does  not  reach  the  drawer  in  season,  the 
drawer  is  not  discharged. (</)     Nor  should  we  say,  although  on 


(o)  Mailman  v.  D'Eguino,  2  H.  Bl.  565.  The  head  note  in  Fleming  v.  M'Chire, 
1  Brev.  428,  is,  that  "where  a  bill  drawn  in  this  country  on  Europe  has  been  dishon- 
ored, notice  must  be  sent  by  tlie  first  ship  bound  to  any  port  of  the  United  States ;  and 
it  is  not  sufficient  to  send  it  by  tlie  first  ship  for  the  port  where  the  drawer  and  indorser 
resides."  This  is  neither  law  nor  the  decision  of  the  court.  All  that  was  decided  was 
this  :  A  bill  was  drawn  in  Charleston  on  London.  The  notice  was  not  received  until 
four  months  after  the  dishonor  of  the  note.  The  judge  left  it  to  the  jury  to  say,  from 
the  circumstances  of  the  case,  whether  the  notice  might  not  have  been  sent  earlier,  and 
said  that  '•  it  would  be  doing  violence  to  presumption  "  to  suppose  that  it  might  not 
have  been  sent  before.  His  charge  was  held  correct.  All  that  the  case  really  decides 
is,  that  a  party  in  London  cannot  wait  three  months  in  order  to  send  a  notice  by  ship 
direct  to  Charleston,  when  he  may  be  supposed  to  have  had  chances  to  forward  it  by 
vessel  to  some  other  port.  If  the  head  note  correctly  states  the  law,  then  the  holder 
might  be  obliged  to  forward  a  notice  to  Portland,  by  a  vessel  for  New  Orleans,  although 
it  might  be  sent  to  Portland  direct  by  a  vessel  which  sails  for  the  latter  place  a  day  or 
two  subsequently  to  the  former  vessel. 

(p)  Crawford  v.  Branch  Bank,  7  Ala.  205,  where  it  was  also  held  that  the  postmark 
was  not  evidence  of  itself,  but  might  be  proved  by  the  person  who  stamped  it,  or  by 
any  one  in  the  habit  of  receiving  letters  from  that  office.  Se.d  quare.  See  Abbey  v. 
Liil,  5  Bing.  299.  But  see  Woodcock  v.  Houldsworth,  16  M.  &  W.  124.  In  Stocken 
V.  Collins,  9  Car.  &  P.  653,  the  postmark  of  a  letter  denoted  that  it  was  put  in  on  April 
29,  at  10  A.  M.  A  witness  stated  that  it  was  put  in  on  April  28,  before  1  P.  M.  The 
judge  charged  the  jury  to  find  for  the  plaintiff,  if  they  should  find  the  letter  to  have  been 
Jeposited  at  the  time  the  witness  stated  ;  and  to  find  for  the  defendant,  if  it  was  depos- 
•'ted  at  the  time  the  postmark  denoted.  The  jury  found  for  the  plaintiff,  and  a  motion 
for  leave  to  enter  a  nonsuit  was  overruled. 

{q)  Hewitt  v.  Thompson,  1  Moody  &  R.  543.  It  will  be  seen  hereafter,  that  if 
ft  person  use  due  diligence  to  discover  the  address  of  a  drawer  or  indorser,  and 
41  * 


4H(5  NOTES   AND   BILLS.  [CH.  XH. 

this  point  we  have  no  authority,  that  the  indorsers  would  be 
discharged,  for  the  case  seems  to  come  under  the  rule  of  im- 
possibility, as  the  holder  has  done  all  that  he  could  do. 

Where  a  notice  to  an  indorser  was  mailed  in  London,  addressed 
10  "  Mr.  Haynes,  Bristol,"  Abbott,  0.  J.  ruled  that  it  did  not 
raise  the  presumption  of  delivery,  and  required  some  proof  of  the 
reception  of  the  notice  by  the  defendant,  on  the  ground  that,  as 
the  place  was  very  populous,  there  might  be  many  persons  there 
of  the  same  name.(r)  If,  however,  all  the  information  which  the 
drawer  has  is  given  by  the  signature,  and  all  this  information  is 
made  use  of  by  tke  holder,  it  is  certainly  evidence  from  which 
a  jury  may  infer  due  notice  to  him, (5)  or  at  least  that  the  holder 
has  done  all  that  he  could.  In  this  country,  a  letter  in  which  a 
notice  is  sent  should  be  directed  to  the  proper  town  and  State, 
and  an  omission  as  to  the  latter  has  been  held  to  invalidate  the 
notice.  (^) 

It  may  be  expected  that  questions  will  arise  on  this  subject 
before  long,  by  reason  of  the  recently  invented  and  already  gen- 
erally used  magnetic  telegraph.  We  have,  however,  no  knowl- 
edge of  its  being  used  for  purposes  of  this  kind,  or  of  any  suppo- 
sition by  merchants  or  lawyers  that  it  is  the  necessary  or  proper 
instrument  for  giving  such  notice.  We  shall  not  attempt  to 
anticipate  either  these  questions  or  the  answers  to  them,  further 
than  to  remark,  that  if  a  message  were  duly  sent  by  telegraph, 


still  misdirect  the  letter,  the  notice  will  be  good.  See  Siggers  v.  Brown,  1  Moody 
&  I{.  520. 

()■)  Walter  v.  Haynes,  Ryan  &  M.  149.  In  Jones  v.  Waidcll,  6  Watts  &  S.  399,  a 
notice  in  a  letter  was  directed  to  "  Wm.  1).  Jones,  Philadelphia,  Pa."  The  letter  was 
taken  out  of  the  post-office  by  another  person  of  the  same  name  with  the  indoi^ser. 
The  indorser  received  it  after  a  few  days'  delay.  Held,  that  tills  delay  did  not  dis- 
charge him.     Sec  Lawrence  v.  Miller,  16  N.  Y.  23-5;  True  v.  Collins,  3  Allen,  438. 

(s)  In  Mann  v.  Moors,  Ryan  &  M.  249,  the  drawer  dated  the  bill  "  Manchester." 
The  fact  that  a  notice  was  sent,  addressed  to  "  Mr.  Moors,  Manchester,"  was  held  evi- 
dence hy  wliich  a  jury  miglit  find  that  he  had  received  due  notice.  The  jury  found  for 
the  plaintiff.  The  same  has  been  held,  where  the  drawer  dated  the  bill  at  London. 
Clarke  v.  Sharpe,  3  M.  &  W.  166;  Burmcster  v.  Barron,  17  Q.  B.  828.  In  this  last 
case  there  was  evidence  that  the  drawer  never  received  the  notice.  The  jury  found  for 
tiie  plaintiff,  and  a  rule  to  enter  a  nonsuit,  on  a  verdict  for  the  defendant,  was  refused. 
It  was  also  held  here,  that  the  fact  that  the  residence  of  the  acceptor  was  stated  in  the 
acceptance,  and  that  inquiries  might  have  been  made  of  him  by  which  the  residence  of 
the  drawer  might  have  \)cv.u  ascertained,  did  not  render  the  notice  insufficient. 

(<)  Beckwith  i;.  Smith,  22  Maine,  125,  where  the  letter  was  directed  to  Calais  It 
was  proved  that  there  was  a  Calais,  Me.  and  a  Calais,  Vt. 


I 


CII.  XII.J       TO   WHAT   PLACE    THE   NOTICE    SHOULD    BE   SENT.  487 

and  duly  delivered,  it  would  no  doubt  be  deemed  sufficient;  and 
if  the  importance  of  giving  early  information  of  the  dishonor  of 
negotiable  paper  should  induce  our  merchants  to  apj)ly  the  tele- 
graph to  this  purpose,  a  usage  may  grow  up  which  would  gradu- 
ally acquire  the  force  of  law.  At  present,  no  such  usage  is 
known  to  exist.  A  question  may  arise  in  other  cases  of  notice 
as  well  as  in  that  now  under  consideration,  in  which  a  party  who 
is  entitled  to  the  earliest  information  of  an  important  fact,  from 
a  delay  in  giving  this  information  suffers  actual  damage  ;  and  this 
may  cause  an  inquiry  whether  the  informing  party  discharged 
the  whole  of  his  duty.  And  if  he  made  use  of  the  mail,  which 
required  a  delay  of  many  days,  when  a  means  of  telegraphic  com- 
munication was  open  to  him  for  which  as  many  minutes  sufficed, 
and  one  which  is  found  to  be  reasonably  safe  and  trustworthy, 
and  which  does  not  at  all  interfere  with  a  resort  to  the  mail  also, 
the  question  may  arise  whether  it  was  not  his  duty  to  make  use 
of  this  more  rapid  means,  or,  on  the  other  hand,  whether  it  would 
not  be  competent  for  him  to  say,  that  he  had  no  confidence  in 
new  things,  but  preferred  "  ire  per  antiquas  vias."^  But  this 
question  must  depend  for  its  answer  in  each  case  upon  its  pecu- 
liar circumstances  and  merits,  as  well  as  upon  the  usages  which 
may  grow  up. 


SECTION    III. 

TO    WHAT    PLACE    THE    NOTICE    SHOULD    BE    SENT. 

The  place  of  business,  if  the  notice  is  sent  by  a  clerk  or  mes- 
senger, is  the  proper  place  as  well  as  the  usual  one ;  (u)  and  it  has 


(u)  There  seems  to  be  some  uncertainty  as  to  the  proper  statement  of  the  rule. 
Thus,  in  the  following  cases  it  is  laid  down  that,  where  the  parties  live  in  the  same 
place,  notice  must  be  served  personally,  or  at  the  indorser's  residence,  or  at  his  place 
of  business.  Bank  of  Columbia  v.  Lawrence,  1  Pet.  578,  583  ;  Williams  v.  Bank  of 
U.  S.,  2  id.  96,  101  ;  Hyslop  v.  Jones,  3  McLean,  96  ;  Ea^jle  Bank  r.  Hathaway,  5 
Met.  212;  Peirce  v.  Pendar,  id.  352;  Ireland  v.  Kip,  II  Johns.  231  ;  Green  v  Dar- 
ling, 15  Maine,  139;  Kramer  v.  M'Dowell,  8  Watts  &  S.  138;  Haly  c.  Brown,  5 
Penn.  State,  178;  Brindley  v.  Barr,  3  Ilarring.  Del.  419;  Curtis  v.  State  Bank,  6 
Blackf.  312  ;  Stephenson  v.  Primrose,  8  Port.  Ala.  155  ;  Phillips  v.  Alderson,  5  Humph. 
403;  Wilcox  v  M'Xutt,  2  How.  Miss.  776  ;  Manadue  ;;.  Kitchen,  3  Rob.  La.  261  ; 
Saul  V.  Brand,  1  La.  Ann.  95.  In  the  following  cases  it  is  said  that  the  notice  should  be 
\erred  personally,  or  at  the  indorser's  residence.     U.  S.  v.  Barker,  4  Wash.  C.  C  464, 


488  NOTES    AND    BILLS.  [  CH.  Xn. 

even  been  said,  that  it  is  the  duty  of  the  person  notified  to  have 
some  one  to  attend  to  such  matters  at  his  place  of  business ;  (v) 
and  therefore,  if  notice  is  sent  in  tliat  way,  and  no  person  is 
found  at  the  place  of  business,  it  is  a  sufficient  notice. (i(;)  But 
this  may  be  doubted ;  and  we  should  not  think  it  always  safe 
to  rely  upon  such  notice.     Even  demand  may  be  made,  as  we 


470  ;  Ireland  c.  Kip,  10  Johns.  490 ;  Smedes  v.  Utica  Bank,  20  id.  372,  392.  So  m 
Commercial  Bank  v.  Strong,  28  Vt.  316,  Redjield,  C.  J.  said:  "The  general  course 
of  decision  is,  certainly,  that  notice  to  the  indorser  must  be  sent  to  the  jilace  of  liis  resi- 
dence, unless  he  is  shown  to  have  his  place  of  business  elsewhere."  In  Shepard  v.  Hall, 
1  Conn.  329,  Swift,  C.  J.  said :  "  Where  the  parties  live  in  the  same  town,  personal 
notice  of  the  non-payment  of  bills  and  notes  must  be  given."  A  personal  notice  is 
good  wherever  it  may  be  served.  Hyslop  v.  Jones,  3  McLean,  96.  In  Van  Vechten  v. 
Pruyn,  3  Kern.  .549,  552,  ComstocJc,  J.  said  that  the  true  rule  was,  that  "  when  the  ser- 
vice is  not  by  mail,  notice  may  be  left  indifferently  at  the  indorser's  dwelling  or  place 
of  business."  In  this  case  the  indorser  and  holder  lived  in  the  same  town.  The  in- 
dorser  spent  three  days  in  the  week  there,  and  the  remaining  four  in  the  city  of  New 
York,  where  he  transacted  his  business  and  usually  received  his  pa])ers  and  letters. 
Held,  that  a  notice  sent  by  mail  to  the  latter  place  was  insufficient,  without  proof  that 
the  notice  was  received.     Sed  qwere. 

((•)  Lord  Ellenborouffh,  Crosse  v.  Smith,  1  Maule  &  S.  545;  Lord  Eidon,  in  Gold- 
smith V.  Bland,  cited  id.  554,  left  it  with  the  jury  to  say  whether  the  indorser  sliould 
have  a  per^^on  there  In  Granite  Bank  v  Ayers,  16  Pick.  392,  Shaw,  C.  J.  said  :  "  Now 
t'hough  a  man  is  out  of  town,  yet  if  he  has  a  domicil  or  place  of  business,  it  is  to  be  pre- 
sumed that  he  will  leave  some  person  charged  with  the  care  of  his  business,  or  at  least 
some  o)ie  between  whom  and  himself  there  is  a  privity  or  confidence.  It  is  ujion  this 
principle  that  all  notices  at  one's  domicil,  and  all  notices  respectint^  transactions  of  a 
commercial  nature  at  one's  known  place  of  business,  are  deemed,  in  law,  to  be  good 
constructive  notice,  and  to  have  the  legal  effect  of  actual  notice."  So  in  Jones  v. 
Manskcr,  15  La.  51,  54,  Morphy,  J.  said  :  If  the  indorser  has  left  no  one  there  to  at- 
tend to  Ills  affairs,  it  is  his  loss,  and  the  holder  of  the  note  or  bill  has  done  his  duty, 
and  all  that  the  law  demands  of  him  Notice  left  with  a  clerk  at  the  indor.ser's  office, 
in  the  absence  of  the  latter,  is  sufficient.  Edson  v.  Jacobs,  14  La.  494;  Jones  v. 
Manskcr.  15  id.  51  ;  Commercial  Bank  ».  Gove,  id.  113. 

(w)  Crosse  v.  Smith,  1  Maule  &  S.  545  ;  Goldsmith  v.  Bland,  id.  554  ;  Bancroft  c.  Hall, 
Holt,  N.  P.  476  ;  State  Bank  v.  Henncn,  16  Mart.  La.  226  ;  Miller  r.  Ilennen.  15  id. 
587.  See  Granite  Bank  v.  Ayers,  16  Pick.  392.  See  Allen  v.  Edmundson,  2  Exch.  719, 
where  it  was  held  that  the  fact  that  the  counting-room  of  the  indonscr  was  closed  should 
have  been  pleaded  as  a  dispensation  of  notice,  and  that  it  did  not  support  an  allegation 
of  due  notice.  Notice  left  with  a  clerk  at  the  indorser's  place  of  business,  in  the  ab- 
sence of  the  latter,  is  sufficient.  Edson  v.  Jacobs,  14  La.  494  ;  Jones  v.  Manskcr,  15  id. 
51  ;  Commercial  Bank  v.  Gove,  id.  113.  So  notice  left  at  the  indorser's  store,  there 
being  no  proof  as  to  the  person  with  whom  it  was  left,  is  sufficient.  Bank  of  Louisiami 
r.  Manskcr,  id.  115.  Notice  left  with  a  l)lack  man  at  the  indorser's  office  is  sufficient. 
Bank  of  U.  S.  r.  Merle,  2  IJob.  La.  117.  Notice  left  at  the  indorser's  counting-room, 
with  a  person  who  declared  himself  to  be  the  indorser's  agent,  is  sufficient,  ami  proof 
that  the.  person  with  whom  it  was  left  was  not  an  agent  of  the  indorser  is  irrelevant, 
the  notice  having  been  left  at  the  right  place.    Jacobs  r.  Town,  2  La.  Ann.  964.     A 


CH.  XII.]       TO   WHAT    PLACE    THE   NOTICE   SHOULD    BE    SENT.  489 

have  seen, (a;)  at  the  residence  of  a  payor,  altliough  it  can- 
not be  supposed  to  be  usual,  in  the  course  of  business,  for 
a  maker  or  acceptor  to  keep  his  funds  or  his  books  at  his 
house.  No  such  objection,  nor  any  other,  lies  against  giving 
notice  of  dishonor  at  one's  residence ;  and  this  we  think  should 
be  done,  if  no  one  is  found  at  the  place  of  business. (y/)     Bu.1 


notary's  certificate  of  notice  to  an  indorser  I)y  "  a  letter  delivered  to  his  bar-keeper,  he 
not  being  in.  is  in.suflicient,  i)ecau.sc  it  does  not  mention  the  place  of  delivery;  but  the 
defect  may  be  cured  by  evidence.  Saul  v.  Brand,  I  La.  Ann.  9.5.  Notice  left,  with  a 
mate  on  board  a  I)ritr  commanded  by  an  indorser  is  enough.  Austin  v.  Latham,  19  La. 
88.  In  Ogden  v  Cowley,  2  Johns.  274,  the  notary  called  at  the  house  of  an  indorser, 
and  finding  it  shut,  on  inquiry  learned  that  he  had  gone  out  of  town.  The  yellow 
fever  was  prevailing  there  to  some  extent.  The  notary  deposited  the  notice  in  the  post- 
office.  Held  sufficient.  A  notice  left  at  the  oflSce  of  the  indorser,  with  a  person  there, 
was  held  sufficient  Lord  v.  Appleton,  15  Maine,  270,  where  it  is  also  said  that,  if  it 
had  been  simply  left  tliere,  in  the  absence  of  any  person  to  receive  it,  it  would  have 
been  sufficient.  In  Miles  v  Hall,  12  Smedcs  &  M.  .332,  the  notary  went  to  the  bed-side 
of  the  indorser,  who  was  sick,  with  the  notice,  and  said  he  had  protested  a  note,  but 
could  not  say  that  the  indorser  heard  liim.  He  then  left  the  notice  on  the  mantel- 
piece.    Held  sufficient. 

(x)  Supra,  p.  422,' note  m.  So  a  notice  left  at  the  dwelling-house  of  an  indorser  is 
sufficient.  Franklin  v.  Verbois,  6  La.  727  ;  Coulon  v.  Champlin,  15  id.  544.  A  notary's 
certificate  that  he  left  the  notice  at  the  domicil  of  the  indorser  is  sufficient,  as  it  is 
unnecessary  to  show  a  delivery  to  any  one  there,  or  that  he  simply  left  it,  as  either 
is  enough.  Manadue  v.  Kitchen,  3  Rob.  La.  261.  Notice  delivered  to  a  black  man, 
who  seemed  to  be  a  servant  of  the  indorser's  family,  standing  before  the  indorser's 
house  early  in  the  morning,  before  the  door  was  opened,  and  who  said  that  the  family 
were  not  up,  was  held  insufficient,  defendant  proving  that  the  black  man  was  not  con- 
nected in  any  way  with  the  family.     Dufour  v.  Morse,  9  La.  333. 

(y)  But  in  Cros.se  i;.  Smith,  1  Maule  &  S.  545,  it  appeared  that  the  drawer,  to  whose 
counting-room  a  person  was  sent  to  give  notice  of  the  dishonor  of  the  bill,  resided  but  a 
short  distance  from  the  counting-room  ;  and  in  the  other  cases  cited  supra,  note  w,  no 
mention  is  made  of  any  demand  at  the  residence,  or  any  suggestion  of  its  necessity  or 
propriety.  In  Bank  of  Columbia  v.  Lawrence,  1  Pet.  578,  it  was  held,  that  the  fact  that 
an  indorser  occupied  a  room  in  another's  house  for  settling  up  his  former  business,  and 
where  he  kept  his  books  of  account,  and  his  newspapers  and  foreign  letters  were  left, 
did  not  make  this  his  "place  of  business."  In  Stephenson  v.  Primrose,  8  Port.  Ala  155, 
it  was  held,  that  a  room  where  a  man  is  accustomed  to  resort,  but  where  he  is  not 
shown  to  carry  on  any  regular  trade  or  employment,  is  not  his  place  of  business  In 
Commercial  Bank  v.  Strong,  28  Vt.  316,  it  was  held,  that  the  office  of  a  railroad  cor- 
poration of  which  the  indorser  was  president  was  not  his  place  of  business.  A  notice 
lefl  at 'the  post-office  of  which  the  party  notified  was  postmaster  was  held  sufficient. 
Cook  V.  Renick,  19  111.  598.  In  Granite  Bank  v.  Avers,  16  Pick.  392.  a  notice  was 
left  on  the  counter  of  the  .shop  of  a  stranger,  who  told  the  notary  that  the  indorser's 
place  of  business  was  behind  the  shop,  that  the  indorser  was  absent  from  town,  and 
promised  to  give  him  the  notice  when  he  returned.  It  seems  that  this  was  insufficient. 
In  Chouteau  v.  Webster,  6  Met.  1,  the  notice  was  sent  to  Washington  to  the  defendant, 
»  Senator  in  Congress.     Held  sufficient,  although  his  permanent  place  of  residence  was 


490  NOTES   AND   BILLS.  [CH.  XH 

it  may,   perhaps,  be  sent  to   either,  if  both   are   in  the  same 
toYcn.{z) 

Here,  as  in  the  case  of  demand,  the  holder  must  do  what  he 
can,  but  is  excused  by  an  impossibility.  If  he  does  not  know 
where  the  indorser  lives,  but  can  acquaint  himself  with  it  by  rea- 
sonable endeavors,  he  must  do  so.  (a)     Thus  it  is  not  enough  to 


elsewhere,  and  although  he  had  an  agent  who  had  charge  of  his  business  matters  in 
another  place.  So  also  Tunstall  v.  Walker,  2  Smedes  &  M.  638,  overruling  3  How. 
Miss.  259.  In  Marr  v.  Johnson,  9  Yerg.  1,  notice  sent  to  the  residence  of  a  member  of 
Congress,  who  was  in  Washington  at  the  time,  was  held  sufficient.  In  Hill  v  Norvell, 
3  McLean,  583,  a  notice  to  an  indorser,  a  member  of  the  Senate  or  House  of  Repre- 
sentatives in  Washington,  left  at  the  post-office  of  the  Senate  or  House,  Congress  then 
being  in  session,  was  held  insufficient.  In  Bank  of  U.  S.  v.  Lane,  3  Hawks,  453,  the 
notice  was  sent  to  the  shire  town.  The  indorser  was  high  sheriff  of  tlie  county,  and  at 
the  time  was  in  attendance  at  the  court.  Held  sufficient,  although  not  sent  to  the  place 
where  he  lived,  or  to  his  usual  post-office. 

(z)  Williams  v.  Bank  of  U.  S.,  2  Pet.  96,  101.  So  where  they  are  in  different  towns. 
Bank  of  Geneva  v.  Howlett,  4  Wend.  328;  Downer  v.  Remer,  21  id.  10.  A  note 
was  payable  at  a  bank  in  the  town  of  A.,  where  the  indorser  got  his  letters.  The 
notice  was  sent  to  an  adjoining  town,  where  he  lived.  Held  sufficient,  it  not  appear- 
ing that  the  party  sending  the  notice  knew  that  the  indorser  usually  received  his 
letters  at  A.  Seneca  Co.  Bank  v.  Neass,  3  Comst.  442,  5  Denio,  329.  Where  an 
indorser  lived  in  one  village,  and  occasionally  got  his  letters  there,  but  transacted 
his  business  in  another  town,  where  he  received  most  of  his  letters,  a  notice  sent  tc 
the  latter  place  was  held  sufficient.  Montgomerj-  Co.  Bank  i;.  Marsh,  3  Seld.  481. 
In  Runyon  v.  Mountfort,  Busbee,  371,  the  indorser  had  lived  in  Onslow.  Some 
years  before  the  maturity  of  the  bill,  he  purcha'^cd  a  iiouse  and  lot  in  Newbcrn,  and 
afterwards  lived  in  the  former  place  from  October  till  June,  and  in  the  latter  the 
rest  of  the  year.  His  letters  were  received  in  Onslow.  The  notice  was  sent  to  Ncw- 
bern  in  April.  Held,  that  Newbern  was  not  the  proper  jdace  to  which  the  notice 
should  be  sent  But  in  Stewart »;.  Eden,  2  Caines,  121,  where  the  indorser  resided 
part  of  the  year  in  New  York,  and  spent  the  summer  in  the  country,  a  few  miles  from 
that  city,  a  notice  put  into  the  keyhole  of  the  door  of  the  house  in  New  York  was  held 
sufficient.  And  in  Exchange,  &c.  Co.  v.  Boyce,  3  Rob.  La.  307,  it  was  held,  that  where 
a  person  lives  part  of  the  year  in  one  place  and  part  in  another,  notice  may  be  sent  to 
either.  Where  the  indorser  has  two  or  more  places  of  business  in  the  same  town,  the 
holder  may  send  the  notice  to  either.  Phillips  t;.  Alderson,  5  Humph.  403;  Rcdficld, 
C.  J.,  Commercial  Bank  v.  Strong,  28  Vt.  316,  320. 

(a)  Harris  v.  Robinson,  4  How.  336;  Burmester  v.  Barron,  17  Q.  B.  828;  Lambert 
r.  Ghisclin,  9  How.  552;  Chapcott  v.  Curlewis,  2  Moody  &  R.  484  ;  Carroll  v.  Upton,  3 
Comst.  272,  2  Sandf  171  :  Rawdon  v.  Redfield,  2  Sandf  178;  Spencer  v.  Bank  of 
Salina,  3  Hill,  520 ;  Bank  of  Utica  i;.  De  Mott,  13  Johns.  432  ;  Bank  of  Utica  r.  Ben- 
der, 21  Wend  643  ;  Belden  ».  Lamb,  17  Conn.  441  ;  Hill  v.  Varrell,  3  Grcenl.  233  ;  Haly 
V.  Brown,  5  Penn.  State,  178  ;  Smith  v.  Fisher,  24  id.  222 ;  Runyon  i».  Montfort,  Bus- 
bee,  371 ;  Nichol  v.  Bate,  7  Yerg.  305  ;  M'Murtrie  i>.  Jones,  3  Wash.  C  C.  206.  As  to 
what  constitutes  due  diligence,  it  is  extremely  difficult,  if  not  impossible,  to  lay  down 
any  general  rules  ap])licablc  to  all  cases,  inasmuch  as  each  one  is  dependent  to  a  g-eat 
degree  on  its  own  special  circumstances.     In  Rawdon  v.  Redfield,  2  Sandf  17f ,  tn<i 


I 


I 


CH.  XII.]       TO   WHAT    PLACE   THE   NOTICE   SHOULL    BE    SENT.  491 

address  notice  by  mail  to  a  drawer,  at  the  place  where  the  bill  is 
drawn,  without  some  inquiry,  if  any  is  practicable,  to  ascertain 

general  doctrine  is  laid  down,  that  if  the  notary  inquire  of  persons  who,  from  their 
connection  with  tiic  transaction,  are  likely  to  know  where  the  iiidorser  resides,  and  are 
not  interested  to  mislead  the  notary,  and  he  acts  on  information  thus  obtained,  it  is  ex- 
ercising due  diligence.  In  the  case  itself,  the  inquiries  were  made  of  the  acceptor  and 
holder,  and  were  considered  sufficient.  In  Harris  v.  Robinson,  4  How.  336,  it  was  held 
that  there  was  no  absolute  obligation  incumbent  on  the  notary  to  inquire  of  the  holder 
of  the  note  where  the  indorser  lived.  McLean,  J.  dissenting,  on  the  ground  that,  if  such 
were  the  law,  a  holder  who  is  presumed  to  know  where  the  indorser  resides  might  evade 
the  law  with  respect  to  demand  and  notice  by  employing  an  agent  who  does  not  possess 
such  knowledge.  "  It  is  a  new  principle  in  the  law  of  agency,  that  the  knowledge  of  the 
principal  shall  not  affect  iiim,  provided  he  can  employ  an  agent  who  has  no  knowledge 
of  the  subject."  The  circumstances  of  the  case  showed,  in  the  opinion  of  McLean,  J.,  that 
the  holder  knew  where  the  indorser  resided.  In  Smith  v.  Fisher,  24  Penn.  State,  222, 
Haly  V.  Brown,  5  id.  178,  the  notices  were  held  insufficient,  princi])ally  because  the 
holder  and  owner  had  not  given  any  information  to  the  notary  as  to  the  place  where  the 
indorser  lived.  So  in  Hill  v.  Varrell,  3  Greenl.  233,  it  is  held  that  inquiry  should  be  made 
of  the  parties  to  the  note  ;  the  only  inquiry  made  was  of  one  indorser,  and  the  notice  was 
held  insufficient.  And  in  Lawrence  v.  Miller,  16  N.  Y.  235,  it  was  held  that  the  holder  is 
presumed  in  law  to  know  where  his  immediate  indorser  lives,  and  is  bound  to  communi- 
cate his  information  to  any  agent  employed  to  give  notice  ;  and  where  this  had  not  been 
done,  and  the  notary  left  the  notice  at  the  place  of  business  of  a  stranger  of  the  same 
name  with  the  indorser,  the  latter  was  discharged.  In  Preston  v.  Daysson,  7  La. 
714,  Bullard,  J.  said  :  "  It  is  true  the  holder  of  the  paper  ought  not  to  avail  himself  of 
the  ignorance  of  the  notary  as  to  the  residence  of  the  indorser,  but  there  is  no  evidence 
to  show  that  the  holder  knew  where  she  resided."  In  this  case  the  notary  certified  that 
he  had  used  due  diligence.  The  evidence  was,  that  he  sent  his  clerk  to  the  store  of  the 
drawer,  and  of  the  payee  and  indorser,  and  could  not  obtain  any  information.  The 
indorser  received  notice  some  days  after  the  maturity  of  the  note,  and  was  held.  In 
Fitler  v.  Morris,  6  Whart.  406,  the  holder  knew  where  the  drawers  lived,  but  the  notary 
who  sent  the  notice  did  not.  The  notice  went  to  the  wrong  place,  and  the  drawers 
were  discharged.  See  Paterson  Bank  v.  Butler,  7  Halst.  268.  In  Lambert  v.  Ghise- 
lin,  9  How.  .552,  the  inquiries  were  made  of  a  person  trading  at  a  particular  place,  who 
said  that  the  indorser  lived  in  the  same  place  with  him.  Held  sufficient.  It  was 
also  held,  that  if  due  diligence  was  used  in  sending  the  notice,  it  was  not  necessary 
to  send  a  further  one,  if  the  holder  should  subsequently  find  out  the  actual  residence 
of  the  indorser,  and  that  it  was  at  a  different  place  from  the  one  to  which  the  first 
notice  had  been  sent.  In  Chapman  v.  Lipscombe,  1  Johns.  294,  a  bill  was  dated  at, 
and  accepted  in.  New  York.  Inquiries  were  made  at  the  banks  of  that  place,  and 
from  information  thus  acquired  notice  was  sent,  though  to  the  wrong  place.  Held 
sufficient.  In  Bank  of  Utica  v.  De  Mott,  13  Johns.  432,  the  book-keeper  of  the 
bank  where  the  note  was  inquired  of  the  cashier  and  directors,  and  of  others  whom 
he  supposed  likely  to  know.  The  notice  was  sent  to  the  wrong  place.  The  indorser 
had  lived  more  than  ten  years  previously  at  his  place  of  residence.  Held  insufficient. 
In  Bank  of  Utica  v.  Bender,  21  Wend.  643,  inquiry  of  tlie  drawer  for  the  residence 
of  his  accommodation  indorser,  and  acting  on  information  so  acquired,  was  held  suffi- 
cient, though  the  notice  was  sent  to  the  wrong  place.  So  in  Ransom  v.  Mack,  2  Hill, 
587,  where  the  inquiry  was  made  of  the  second  indorser.  In  Spencer  v.  Bank  of  Salina, 
3  id.  520,  the  nolary  testified  that  he  inquired  of  several  persons  in  a  bar-room  of  a  hotel, 


492  NOTES   AND    BILLS.  [CH.  XU 

wheth«',r  the  drawer  lives  there. (6)     But  if  he  can  learn  no  more, 


And  of  other  persons  whom  he  met  in  the  street,  and  at  the  post-office.  Held,  that  due 
diligence  had  not  been  used.  Branson,  J.  said  that  he  ought  to  have  gone  among  busi- 
ness men.  "  If  he  had  been  told  by  some  credible  person  who  would  be  likely  to  know 
the  fact,  he  might  have  acted  upon  that  information  without  pushing  his  inquiries  fur- 
ther. But  until  some  one  is  found  who  professes  to  be  able  to  give  the  required  infor- 
mation, it  will  not  do  to  stop  short  of  a  thorough  inquiry  at  places  of  public  resort  and 
among  such  persons  as  would  be  most  likely  to  know  the  residence  of  the  indorser." 
In  Belden  v.  Lamb,  17  Conn.  441,  the  cashier  of  a  bank  where  a  note  was  payable 
went  out  of  the  bank  the  day  the  note  matured  to  find  wliere  the  indorser  lived,  and  on 
his  return  directed  the  notice  to  be  sent  to  Chicopee.  Tiie  note  was  payable  at  another 
bank  near  by,  and  the  indorser  had  received  notices  within  a  few  months  previous  from 
that  bank  and  from  others  in  the  same  place.  Tiie  holder  of  the  note  did  not  knoAV 
where  the  indorser  lived.  Held  sufficient  evidence  from  which  a  jury  might  infer  that 
proper  inquiries  had  been  made  at  the  other  banks,  and  that  due  diligence  had  been 
used.  Williams,  C.  J.  and  Slorrs,  J.  dissenting.  Inquiry  by  the  notary  of  the  officers 
of  a  bank  where  the  note  was  to  be  discounted  was  held  not  to  be  using  due  diligence,  in 
Stuckert  v.  Anderson,  3  Whart.  11.  In  Sturges  v.  Derrick,  Wightw.  76,  the  holder 
inquired  of  the  maker's  son  where  the  indorser  lived,  and  could  get  no  infomiation. 
Held,  due  diligence.  But  in  Beveridge  v.  Burgis,  3  Camp.  262,  Lord  EllenboromjJi  non- 
suited the  plaintiff  in  a  case  where  the  only  inquiries  made  were  at  the  place  where 
the  acceptance  was  payable.  Where  no  inquiry  is  made  of  the  maker  or  his  syndic,  or 
of  a  person  of  the  same  surname  with  the  indorser,  but  the  initial  letter  of  whose  first 
name  is  differently  printed  in  the  city  directory,  sufficient  diligence  is  not  used.  Vance 
V.  Depass,  2  La.  Ann.  16.  Where  an  indorser,  formerly  a  shipping-master,  had  kept  no 
office  for  some  years,  though  still  engaged  in  business,  and,  his  name  not  being  found  in 
the  directory,  the  notary  went  to  that  quarter  of  tiic  city  where  his  office  had  been,  and 
inquired  at  a  shipping-office,  the  clerk  of  which  said  that  the  indorser  formerly  stayed 
there,  but  had  left,  and  it  was  not  known  where  he  had  gone;  and  the  notary,  after  in- 
quiring at  the  sailor  boarding-houses  in  the  neighborhood  and  elsewhere  without  success, 
deposited  the  notice  in  the  post-office  of  the  city  when;  the  indorser  resided,  it  was  held 
sufficient.  Feet  v.  Zanders,  6  La.  Ann.  364.  In  Brighton  Market  Bank  v.  Philbrick, 
40  N.  n.  506,  where  the  holder  of  a  dishonored  note,  not  knowing  the  residence  or 
business  address  of  the  indorser,  went  to  the  principal  liotel  in  the  village  where  tlie 
indorser  was  accustomed  to  do  business,  —  that  at  which  men  of  the  same  occupation  as 
tlie  indorser  usually  stopped,  —  to  the  keepers  of  wliich  the  indorser  was  well  known, 
and  from  the  direction  of  wliich  the  holder  had  noticed  tiic  indorser  coming  to  his  own 
place  of  business,  and  upon  inquiring  there,  was  distinctly  informed  that  tlie  indorser 
resided  in  a  particular  town,  whereupon  he,  in  good  faith,  seasonably  forwarded  notice 
of  the  dishonor  to  the  indorser  at  that  town,  it  was  held  that  he  had  exercised  due 
diligence. 

(b)  The  law  is  so  stated  in  the  following  cases  ;  but  in  all  it  appeared  that  the  drawer 
lived  in  a  different  place  from  that  to  which  the  notice  was  sent.  Carroll  v.  Uj)ton,  3 
Comst.  272  ;  Lowcry  v.  Scott,  24  Wend.  358 ;  Foard  v.  Johnson,  2  Ala  565 ;  Hill  r. 
Varrell,  3  Grecnl.  233  ;  Barnwell  v.  Mitchell,  3  Conn.  101,  where  it  also  appeared  that 
no  in(|uiry  had  been  made  of  the  acceptor,  who  knew  where  the  drawer  lived  ;  Fisher  i' 
Evans,  5  IJinn.  541,  hut  in  this  case  no  notice  was  sent.  In  Tierce  v.  Struthers,  27 
renn.  State,  249,  an  opinion  was  expressed,  to  the  effect  that  sending  the  notice  to  the 
drawer  at  the  place  where  the.  I)ill  was  dated  was  prima  ficic  sufficient ;  and  if  it  should 
be  shown  that  he  lived  elsewhere,  then  due  diligence  to  a.scertain  his  place  of  rc.Mdcnco 


CH.  XII.]       TO   WHAT    PLACE    THE   NOTICE   SHOULD    BE    SENT.  493 

a  letter  should  be  so  seiit.(c)  Or  if  the  party  to  be  notified  is 
travelling,  or  is  absent  from  home  for  any  reason,  and  liis  present 
address  is  known  to  the  holder,  or  if  his  absence  from  home  is 
knowji,  and  the  holder  has  any  means  of  learning  his  address,  or 
of  ascertaining  whom  ho  has  left  behind  to  attend  to  his  business, 
it  might  perhaps  be  his  duty  (but  we  cannot  say  tliis  on  author- 
ity) to  send  notice  accordingly.  But  if  a  party  leaves  home 
without  taking  usual  and  proper  precautions  to  facilitate  sending 
business  communications  to  him,  undoubtedly  this  is  his  fault, 
and  he  can  relieve  himself  from  no  responsibility  by  such  fault, 
and  will  be  held  to  all  parties  as  if  duly  notified,  provided  due 
efforts  were  made.(t/)     If  one  about  to  be  absent  directs  that 

should  be  used.  In  Robinson  v.  Hamilton,  4  Stew.  &  P.  91,  the  same  appears  to  have 
been  held.  See  also  Dickins  v.  Beal,  10  Pet.  .572.  But  this  would  not  probably  apply- 
to  the  case  of  an  indorser,  because  it  is  difficult  to  see  how  there  can  be  any  presump- 
tion that  he  lived  where  the  note  or  bill  is  made  or  drawn.  Denny  v.  Palmer,  5  Ired. 
610;  llunyon  v.  Montfort,  Busbee,  371  ;  Branch  Bank  v.  Peirce,  3  Ala.  321  ;  Spen- 
cer V.  Bank  of  Salina,  3  Hill,  520.  In  Wood  v.  Corl,  4  Met  203,  the  note  was  dated 
at  Buffalo.  Noti';c  was  sent  to  the  indorser  at  that  place,  and  the  notary  testified  that 
it  was  reported  that  he  lived  there.  The  defendant,  the  indorser,  contended  that  the 
plaintiff  should  be  required  to  prove,  either  that  he  lived  there,  or  that  due  diligence 
had  been  used.  But  the  court  held  the  evidence  sufficient.  In  Page  v.  Prentice, 
5  B.  Mon.  7,  a  bill  was  dated  at  Louisville,  and  notice  to  the  indorser  was  sent  there. 
Process  had  been  served  upon  him  in  the  county  in  which  Louisville  is  situated.  Held 
sufficient,  in  the  absence  of  proof  that  he  resided  elsewhere.  In  Moodie  v.  Morrall.  3 
Const.  R.  367,  the  note  was  made  and  payable  in  Charleston.  The  maker  lived  there, 
and  the  indorser,  when  there,  resided  in  the  same  house.  Payment  was  demanded  of  the 
indorser's  wife,  who  said  that  both  were  absent,  and  a  notice  was  left  there  for  the  in- 
dorser. Held  sufficient  to  charge  him.  In  Sasscer  v.  Whitely,  10  Md.  98,  Le  Grand,  C.J. 
said :  "  In  the  absence  of  knowledge  of  tlie  holder,  to  be  shown  in  proof,  the  place  of 
the  date  of  the  note  is  to  be  taken  as  the  place  of  residence  of  the  maker  and  indorser." 
If  the  holder  does  not  know  where  the  indorser  lives,  and  cannot  ascertain  it  by  due 
diligence,  it  will  be  sufficient  to  send  the  notice  to  the  place  wlierc  the  note  or  bill  is 
dated.  Godley  v.  Goodloe,  6  Smedes  &  M.  255  ;  Branch  Bank  v.  Peirce,  3  Ala.  321  ; 
Bank  of  Utica  v.  Davidson,  5  Wend.  587  ;  Sasscer  v.  Whitely,  10  Md.  98. 

(c)  See  the  cases  cited  supra,  note  b.  It  may  be  doubted,  however,  whether  this  is 
necessary,  since  where  the  place  of  residence  cannot  be  ascertained,  after  due  diligence 
has  been  used,  no  notice  at  all  is  necessary.  Balclivin,  J.,  Dickins  r.  Beal,  10  Pet.  572, 
580;  Hoopes  v.  Newman,  2  Smedes  &  M.  71,  79;  M'Lanahan  v.  Brandon,  13  Mart. 
La.  321  ;  Robinson  v.  Hamilton,  4  Stew.  &  P.  91.  But  in  Phipps  v  Chase,  6  Met. 
191,  S/iaiv,  C.  J.  said,  that  if  the  actual  place  of  residence  of  a  party  could  not  be  as- 
certained, notice  should  be  given  at  his  last  place  of  abode. 

(d)  Where  the  holder  is  temporarily  absent,  notice  should  be  left  at  his  last  place  of 
abode  or  of  business.  Curtis  v.  State  Bank,  6  Blackf.  312;  Wilco.K  v.  M'Nutt,  2 
How.  Miss.  776  ;  Moodie  v.  Morrall,  3  Const.  R.  367,  su/ira,  note  b.  Notice  left  wit'n  the 
wife  of  the  indorser,  in  his  absence,  is  sufficient.  Blakely  v.  Grant,  6  Mass.  386  ; 
Fisher  v.  Evans,  5  Binn.  542  ;  Cromwell  i;.  Hynson,  2  Esp.  51 1  ;  Ilousego  v.  Cowne,  2 

VOL.  I.  42 


494  NOTES   AND   BILLS.  [CH.  XIL 

notice  should  be  sent  to  liim  at  a  certain  distant  place,  notice  so 
sent  to  him,  and  from  him  to  prior  parties,  will  bind  botli  him 
and  the  prior  parties,  although  it  would  have  reached  him  and 


M.  &.  W.  348.  Notice  left  with  a  fellow-boarder,  at  a  private  boarding-house  where 
the  indorser  lodged,  in  his  absence,  is  sufficient.  Bank  of  U.  S.  v.  Hatch,  6  Pet.  250,  1 
McLean,  90  ;  M'Murtrie  v.  Jones,  3  Wash.  C.  C.  206.  In  Ashley  r.  Gunton,  15  Ark. 
415,  the  notary  left  the  notice  at  the  hotel  where  the  indorser  resided,  addressed  to  him. 
It  did  not  appear  whether  the  indorser  was  at  the  hotel  at  the  time,  or  the  notary  in- 
quired for  him,  or  left  the  notice  with  any  person  for  him.  Held  insufficient.  So  in 
Rives  V.  Parmley,  18  Ala.  256,  Coster  v.  Thomason,  19  id.  717,  where  the  only  testi- 
mony' was  the  notary's  certificate  that  the  notices  were  left  at  the  office  of  the  indorser. 
But  Curry  v.  Bank  of  Mobile,  8  Port.  Ala.  360,  seems  contra.  In  Bradley  v.  Davis, 
26  Maine,  15,  the  notice  was  left  with  the  bar-keeper  of  a  hotel,  for  a  guest.  It  was 
testified  that  letters  so  left  were  put  into  an  urn,  and  sent  up  to  the  guests'  rooms 
within  a  short  time  after  their  reception.  The  court  thought  tliis  sufficient.  So  Dana 
V.  Kemble,  19  Pick.  112.  In  Howe  v.  Bradley,  19  Maine,  31,  the  indorser  occupied  a 
room  in  a  public  house.  The  notary  went  to  the  house,  and  learning  that  he  was 
absent,  left  a  notice  at  the  door  for  him.  It  was  proved  that  his  room  was  locked. 
Held  sufficient.  See  Lord  v-  Appleton,  15  Maine,  270 ;  supra,  p.  489,  note  w.  In 
McCIain  v.  Waters,  9  Dana,  55,  it  was  held,  that  when  the  indorser  or  drawer  is  a 
transitory  person,  without  any  fi.xed  place  of  residence,  notice  m.iy  be  sent  directed  to 
the  place  where  he  usually  resorts.  In  Tunstall  v.  Walker,  2  Smedes  &  M.  638,  it  is 
said  that  no  notice  at  all  is  necessary  in  such  case.  In  case  of  a  permanent  removal 
between  the  making  and  maturity  of  a  note,  it  is  laid  down  in  some  cases  that  the 
holder  must  use  reasonable  efforts  to  ascertain  the  new  place  of  residence,  and  give 
notice  there.  Phipps  v.  Chase,  6  Met.  491  ;  Barker  v.  Clark,  20  Maine,  156.  But  in 
others  the  doctrine  is  held,  that  the  presumption  is  that  the  indorser  continues  to 
reside  where  he  did  when  he  indorsed  the  note,  and  that  a  notice  sent  there  is  suffi- 
cient, unless  the  holder  knew,  or  ouglit  to  have  known,  of  his  removal.  Bank  of 
Utica  V.  Phillips,  3  Wend.  408,  where  Marcy,  J.  said  :  "  It  appears  to  me  that  the 
question  of  diligence  cannot  arise  e.Kccpt  in  cases  where  the  party  knows,  or  ought 
to  know,  that  there  is  occasion  for  its  e.\ercise.  Ought  the  holders  of  this  note,  when 
it  fell  due,  to  have  known  that  between  its  discount  atid  maturity  tlie  indorser  had 
changed  his  residence  ?  They  had  no  reason  to  expect  such  an  event,  and  of  course 
no  considerations  of  diligence  could  have  prompted  them  to  institute  any  inquiry  in 
relation  to  it.  Where  tiic  place  of  an  indorser's  residence  is  established  at  the  time 
when  a  note,  having  the  usual  time  of  bankable  ])aper  to  run,  is  discounted,  and  is  at 
such  a  distance  from  the  place  of  payment  as  to  repel  the  ]ircsuin]>tion  tiiat  a  removal, 
in  case  it  happens  before  the  note  falls  due,  would  come  to  the  knowledge  of  the  holders, 
and  no  actual  knowledge  is  brought  home  to  them,  a  notice  of  demaiul  and  non-j)ayment 
directed  to  such  place  of  residence  is  sufficient,  altliough  the  indorsee  has,  in  fact,  in 
the  mean  time  become  a  resident  of  another  iilacc."  The  same  was  held  in  Harris  v, 
Memphis  Bank,  4  Humph.  519.  In  Farmers',  &c.  Bank  v.  Harris,  2  Hum|)h  311,  the 
judge  ciiarged  the  jury,  that  where  the  places  of  residence  of  the  holder  and  indorser 
were  near  to  each  other,  and  communication  frequent,  tiio  holder  would,  in  legal  con- 
templation, be  presumed  to  know  of  the  removal.  Held  incorrect,  as  it  is  a  matter  of 
fact  and  not  of  law.  In  Planters'  Bank  r.  Bradford,  4  Humph.  39,  where  the  removal 
was  made  under  circumstances  of  particular  notoriety,  the  notice  sent  to  tiie  forinei 
place  of  residence  was  held  insufficient.     In  Winans  i'.  Davis,  3   Ilariison,  276,  ther* 


CH.  Xn.]       TO   WHAT   PLACE    THE   NOTICE    SHOULD    BE   SENT.  495 

them  much  sooner  if  sent  to  his  residence. (e)  And  if  a  foreigner 
in  going  away  tells  the  holder  where  he  is  going,  liis  absence  is 
no  excuse  for  non-notice,  because  it  should  be  sent  to  the  place 
he  pointed  out.(/)  If  a  drawer  or  indorser  hold  himself  out 
to  the  public  as  a  resident  of  any  town,  and  thereby  deceive 
the  holder,  inducing  him  to  send  the  notice  there,  tlie  notice  so 
sent  will  be  binding,  although  the  indorser  live  elsewhere. (^'-) 
In  such  case  he  would  be  estopped  from  denying  the  validity  of 
the  notice  on  the  ground  that  it  was  sent  to  the  wrong  place. 

The  general  rule  applicable  to  all  cases  is,  that  the  party 
should  send  the  notice  to  that  place  where  it  would  most  proba- 
bly find  the  party  to  be  notified  most  promptly,  either  in  fact  or 
according  to  the  best  information  he  possessed  or  could  obtain  by 
the  reasonable  use  of  such  means  as  were  within  his  power. (A) 

were  inquiries  made  by  the  holder  which  would  have  justified  him  in  sending  the  notice 
to  the  former  place.  So  in  Bank  of  Utica  v.  Davidson,  5  Wend.  587.  In  Dun- 
lap  V.  Thompson,  5  Yerg.  67,  notice  sent  to  the  place  from  which  the  indorser  had  re- 
moved was  held  sufficient.  So  also  Hunt  v.  Fish,  4  Barb.  324  ;  McGrew  v.  Toulmin, 
2  Stew.  &  P.  428,  436. 

(e)  Shelton  v.  Braithwaite,  8  M.  &  W.  252.  Where  the  place  is  mentioned  in  the 
indorsement,  it  is  to  be  considered  as  a  part  thereof,  and  notice  sent  there  is  sufficient. 
Morris  v.  Husson,  4  Sandf.  93  ;  Carter  v.  Union  Bank,  7  Humph.  548  ;  Farmers',  &c. 
Bank  v.  Battle,  4  id.  86 ;  Baker  v.  Morris,  25  Barb.  138.  In  the  last  case  the  indorser 
wrote  after  his  name  the  words,  "  Auburn  P.  0."  Held,  that  a  notice  deposited  there 
was  good,  although  all  the  parties  lived  in  the  same  town.  So  notices  may  be  sent  to 
any  place  where  the  indorser  directs  them  to  be  left,  although  he  may  have  a  place 
of  residence  or  of  business  elsewhere.  Eastern  Bank  v.  Brown,  17  Maine,  356.  See 
Bank  of  U.  S.  v.  Corcoran,  2  Pet.  121,131.  Although  there  may  be  post-offices  nearer 
to  the  place  where  he  lives.  Crowley  v.  Barry,  4  Gill,  194  ;  Bell  v.  Hagerstown  Bank, 
7  id.  216  ;  Bank  of  Columbia  r.  Magruder,  6  Harris  &  J.  172 ;  Cormena  v.  Bank  of 
Louisiana,  1  La.  Ann.  369. 

(/)  See  Hodges  v.  Gait,  8  Pick.  251. 

{g)  Lewiston  Falls  Bank  v.  Leonard,  43  Maine,  144.  In  this  case  the  indorser  was 
the  president  of  a  bank  in  Hallowell,  from  some  time  prior  to  making  the  note  till 
after  its  maturity,  but  liis  actual  place  of  residence  was  in  New  York.  By  a  statute 
of  Maine,  no  one  but  a  resident  of  that  State  was  eligible  to  the  office  of  director  of  a 
bank.  The  indorser  had  a  box  in  the  post-office  in  Hallowell,  and  his  daughter  was  in 
the  habit  of  taking  his  letters  and  forwarding  them  to  him.  She  testified  to  having 
received  the  notice  in  question,  but  said  she  never  sent  it  to  her  father.  The  indorser 
was  held. 

(h)  In  Chouteau  r.  Webster,  6  Met.  1,  7,  S?iaw,  C.  J.  said:  "It  is  conformable  to 
the  more  general  rule,  sustained  by  many  authorities,  that  notice  shall  be  so  given,  and 
at  such  place,  that  it  will  be  most  likely  to  reach  the  indorser  promptly.  Bank  of  Co- 
lumbia V.  Lawrence,  1  Pet.  578  ;  Btnk  of  U.  S.  v.  Carneal,  2  id.  543."  For  the  inquiries 
which  should  be  made,  see  the  cases  cited  supra,  p.  490,  note  a.  In  Bank  of  Utica  t'. 
Bender,  21  Wend.  643,  the  bill  was  dated  at  C.,  and  under  the  defendant's  name  as 


496  NOTES  AND   BILLS.  [CH.  XH. 

If  it  be  sent  where  the  drawer  did  actually  reside,  his  absence 
from  home  or  his  removal  does  not  vitiate  the  notice,  unless  such 
removal  was  known,  or  should  have  been  known,  to  the  sender. (f) 

If  it  actually  reaches  the  party  to  be  notified  in  due  season,  it 
is  altogether  immaterial  to  what  place  it  was  sent. (7) 

We  have  already  seen  (k)  that,  in  cases  where  the  mail  may 
legally  be  used  for  the  purpose  of  transmitting  notices  of  dishonor, 
the  sender  is  not  responsible  for  any  failure  in  their  transmission. 
Consequently,  under  such  circumstances,  puttiiig  a  notice  to  an 
indorser  or  a  drawer  in  the  post-office,  properly  directed  to  him 
at  the  place  where  he  lives,  is  considered  generally  as  using  due 
diligence. (/)     Where  there  are  two  or  more  post-offices  in  the 

indorser  was  written  "  C,"  and  notice  was  sent  to  the  defendant  by  mail  to  C. 
Bronson,  J.  said  :  "  It  is  not  absolutely  necessary  that  notice  should  be  brought  home 
to  the  indorser,  nor  even  that  it  should  bo  directed  to  the  place  of  his  residence.  It  is 
enough  that  the  holder  of  a  bill  maices  diligent  inquiry  for  the  indorser,  and  acts  upon 
the  best  information  he  is  able  to  procure.  If  after  doing  so  the  notice  fail  to 
reach  the  indorser,  the  misfortune  falls  on  him,  not  on  the  holder.  There  must  be 
ordinary  or  reasonable  diligence,  such  as  men  of  business  usually  exercise  when  their 
interest  depends  upon  ol)taining  correct  information.  The  holder  must  act  in  good 
foith,  and  not  give  credit  to  doubtful  intelligence,  when  better  could  have  been  ob- 
tained  The  case  then  comes  to  this.     The  plaintiffs  applied  for  information  to  a 

man  worthy  of  belief,  and  who  was  likely  to  know  where  the  indorser  lived.  They  re- 
ceived such  an  answer  as  left  no  reasonable  ground  for  doubt  that  C.  was  the  place  to 
which  the  notice  should  be  sent.  I  think  they  were  not  bound  to  ])ush  the  inquiry  further. 
Men  of  business  usually  act  upon  such  information.  They  buy  and  sell,  and  do  other 
things  affecting  their  interest,  upon  the  credit  which  they  give  to  the  declarations  of  a 
single  individual  concerning  a  particular  fact  of  this  kind  within  his  knowledge.  This 
is  matter  of  common  experience.  Ordinary  diligence  in  a  case  like  this  can  mean  no 
more  than  that  the  inquiry  shall  be  pursued  until  it  is  satisfactorily  answered.  This  is 
the  only  practical  rule.  If  the  holder  of  a  bill  is  required  to  go  further,  it  is  impossible 
to  say  where  he  can  safely  stop.  Would  it  be  enough  to  inquire  of  two,  three,  or  four 
individuals,  or  must  he  seek  intelligence  froni  every  man  in  the  place  likely  to  know 
anything  about  the  matter  ?  It  would  be  diflBcnlt,  if  not  impossible,  to  answer  this 
question." 

(i)  Supra,  p.  493,  note  d. 

(7)  Bradley  i;.  Davis,  26  Maine,  45.  See  Dana  v.  Kerablc,  19  Pick.  112;  Wash- 
iiHlton,  J.,  Bank  of  U.  S.  v.  Corcoran,  2  Pet.  121,  132.  In  Wharton  v.  Wright,  1  Car. 
&  K.  ."JS.!,  the  bill  was  dated  "  Brunswick  Hotel."  The  defendant,  an  indorser,  was 
employed  on  various  railways,  and  had  no  fixed  place  of  residence.  His  wife  had 
made  a  memorandum  that  she  had  received  the  notice.  Held  admissible  to  prove  re- 
ception of  the  notice  by  the  defendant,  the  wife  being  dead,  and  a  verdict  was  rendered 
against  him. 

(k)  Supra,  p.  478,  note  v. 

(/)  Carson  v.  State  Bank,  4  Ala.  148;  Crisson  v.  William.son,  1  A.  K.  Marsh.  454; 
Rand  v.  Ueynolds,  2  Gratt.  171,  infra,  p.  497,  note  7n;  Thorn  r.  Rice,  15  Maine,  263; 
Story,  J.,  Bank  of  U.  S.  v.  Carneal,  2  Pet.  543,  551. 


CH.  XII. ]       TO    WTIAi'    I'LACK    TllK    XOIICK    SHOULD    BE   SENT.  407 

same  town,  a  notice  directed  to  the  town,  without  specifying  any 
particular  part  of  it,  is  sufficient, (m)  uidcss  the  holder  knew,  or 
ought  to  have  known,  at  which  post-office  the  party  to  be  notified 
resorted  for  his  letters,  in  which  case  the  notice  should  be  sent 
there. (?i)  Where  there  is  no  post-office  in  the  town  where  the> 
drawer  or  indorser  resides,  notice  would  seem  to  be  sufficient  if 
sent  to  the  nearest  post-office, (o)  although  there  are  authorities 


(m)  Bank  of  Manchester  ik  Slason,  13  Vt.  334,  wlicre  notice  was  not  sent  to  the 
post-office  nearest  tlie  place  of  I'csidencc  of  tlie  indorser,  and  wiiere  he  nsiuiUy  {;ot  liis 
letters;  Catskill  Bank  v.  Stall,  15  Wend.  364  ;  Reiner  v.  Downer,  23  id.  620,  21  id. 
10;  Morton  v.  Wcstcott,  8  Cush.  42.');  Cabot  Bank  c.  Russell,  4  Gray,  167.  See  Ha- 
zelton  Coal  Co.  v.  Ryerson,  Spencer,  129  ;  Gale  v.  Keinper,  10  La  20.') ;  Ciiyler  v.  Nel- 
lis,  4  VVeiid.  398,  which  held  that  in  such  ease  tlie  holder  was  bou;id  to  make  reasona- 
ble inquiries  to  ascertain  to  which  post-office  the  indorser  usually  resorts,  or  wJiich  is 
the  nearest  one,  is  overruled.  This  last  seems  to  be  the  opinion  held  in  Ferris  v.  Sax- 
ton,  1  South.  1  ;  Taylor  v.  Bank  of  111.,  7  T.  B.  Mon.  576.  In  Becnei  v.  Tournillon, 
6  Rob.  La.  500,  a  notice  directed  to  a  parish  generally,  in  which  there  were  several  post- 
offices,  was  held  insufficient.  But  in  Follain  v.  Dupre,  1 1  id.  454,  it  was  proved  that 
the  notice  so  directed  would  regularly  go  to  the  office  nearest  the  indorser's  residence, 
and  the  indorser  was  held.  In  Rand  v.  Reynolds,  2  Gratt.  171,  a  notice  sent  to  a  post- 
office  within  the  same  district  in  which  the  indorser  lived  was  held  sufficient;  although 
the  indorser  usually  got  his  letters  in  a  different  town,  which  was  nearer  his  residence. 
In  Weakly  v.  Bell,  9  Watts,  273,  a  notice  sent  to  the  shire  town  of  the  county  where 
the  indorser  lived  was  held  sufficient,  although  there  was  a  nearer  post-office  which  he 
was  in  the  habit  of  using. 

(n)  In  Morton  v.  Westcott,  8  Cush.  425,  Shaw,  C.  J.  said  :  "It  seems  well  settled, 
that,  when  there  are  two  post-offices  in  a  town,  notice  by  letter  to  an  indorser  addressed 
to  him  at  the  town  generally  is  sufficient,  unless  the  party  addressed  has  been  gener- 
ally accustomed  to  receive  his  letters  at  one  of  the  offices  in  particular,  and  to  have  his 
letters  addressed  to  him  there  by  his  correspondents.  Such  being  the  rule,  the  plain- 
lift'  proves  his  case,  prima  facie,  by  proving  notice  by  letter  addressed  to  the  defend- 
ant at  the  town  generally.  If,  then,  the  defendant  would  rebut  this  presumption  of  fact, 
and  bring  himself  within  the  exception,  it  lies  on  him  to  prove  that  he  did  usualh'  re- 
ceive his  letters  at  one  office  only,  and  that  this  might  have  been  known  by  reasonable 
inquiry  at  the  place  where  the  letter  was  mailed.  Without  this  proof  it  may  be  true 
that  the  defendant  received  his  letters  habitually  as  well  at  one  post-office  as  the  other, 
and  then  the  plaintiff"'s  prima  facie  proof  remains  unrebutted,  and  he  must  prevail." 

(o)  Shed  V  Brett,  1  Pick.  401  ;  Union  Bank  v.  Stoker,  1  La.  Ann.  269 ;  Priestley  v. 
Bisland,  9  Rob.  La.  422.  See  Mainer  v.  Spurlock,  id.  161  ;  Duncan  v.  Sparrow,  3  id. 
264;  Mechanics',  &c.  Bank  v.  Compton,  id.  4  ;  Nicholson  p.  Marders,  id.  242  ;  Union 
Bank  v.  Brown,  1  id.  107  ;  Nott  v.  Beard,  16  La.  308.  See  Foreman  v.  Wikoff",  id.  20 ; 
Downer  v.  Remer,  21  Wend.  10 ;  Dunlap  v.  Thompson,  5  Yerg.  67,  where  the  indorser 
had  removed  a  few  days  before  maturity,  and  a  notice  sent  to  the  former  place  was  held 
sufficient ;  Farmers',  &c.  Bank  v.  Battle,  4  Humph.  86 ;  State  Bank  i'.  Avers,  2  Halst. 
130;  Hazelton  Coal  Co.  v.  Ryerson,  Spencer,  129;  Ferris  v.  Saxton,  1  Southard,  1  : 
Ouyler  v.  NeUis,  4  Wend.  398 ;  Taylor  v.  Bank  of  111.,  7  T.  B.  Mon.  576 ;  Bondurant 
p.  Everett,  1  Met.  Ky.  658  ;  Thompson,  J.,  Bank  of  Columbia  v.  Lawrence,  1  Pet.  578, 
583;  Story,  J.,  Bank  of  U.  S.  v.  Carneal,  2  id.  543,  551.  In  Davis  v.  Beekham,  4 
Vol.  L— 2  G 


498  NOTES   AND    BILLS.  [CH.  XH. 

which  holi  that  a  special  messenger  should  sometimes  be  used ;  (p) 
and  where  the  nearest  post-office  is  unknown,  a  notice  directed  to 
that  which,  on  proper  inquiry,  is  supposed  to  be  the  nearest,  will 
suffice. (^)  But  it  is  held,  that  notice  may  be  sent  to  the  post- 
office  to  which  the  indorser  usually  resorts,  although  there  are 
other  offices  nearer  his  place  of  residence, (r)  and  although  this 
office  is  in  a  different  town  from  the  one  in  which  the  party  to  be 
notified  lives.  (5)  And  in  conformity  with  the  same  principle  it 
is  held,  that  where  the  indorser  is  in  the  habit  of  receiving  his 
letters  at  either  one  of  three  post-offices,  the  notice  may  be  sent 
to  either  of  the  three. (^) 


Humph.  53,  notice  was  sent  to  the  one  designated  as  the  nearest ;  but  on  proof  being 
offered  that  it  had  been  discontinued  for  a  year,  the  notice  was  held  insufficient.  In 
Davis  tK  Williams,  Peck,  191,  the  plaintiff,  knowing  where  the  defendant  lived,  sent 
the  notice  to  a  place  sixteen  miles  distant,  although  there  was  a  post-office  within  five 
miles.  The  indorser  was  discharged.  In  Moore  v.  Hardcastle,  11  Md.  486,  notice  was 
sent  to  the  shire  town  of  the  county,  when  the  indorser  lived  twelve  miles  distant. 
His  usual  post-office  was  four  miles  from  his  residence.  There  was  no  proof  of  any 
inquiry  by  the  notary  for  the  nearest  post-office.  Held  insufficient. 
{p)  Supi-a,  pp.  478,  479. 
(q)  Marsh  v.  Barr,  Meigs,  68,  9  Yerg.  253. 

(r)  Bank  of  U.  S.  v.  Carneal,  2  Pet.  543  ;  Thompson,  J.,  Bank  of  Columbia  v.  Law- 
rence, 1  id.  578,  583  ;  Bank  of  Geneva  v.  Howlett,  4  Wend.  328 ;  Wliittlesei/,  J.,  Seneca 
Co.  Bank  r.  Neass,  5  Denio,  329,  338 ;  Mercer  v.  Lancaster,  5  Penn.  State,  160 ;  Sher- 
man V.  Clark,  3  McLean,  91 ;  Bank  of  Louisiana  v.  Watson,  15  La.  38  ;  Mead  v.  Car- 
nal, 6  Rob.  La.  73  ;  New  Orleans,  &c.  Co.  v.  Robert,  9  id.  130;  Grand  Gulf,  &c.  Co. 
V.  Barnes,  12  id.  127  ;  New  Orleans,  &c.  Co.  v.  Barrow,  2  La.  Ann.  326  ;  Hepburn  v. 
Ratliff,  id.  331  ;  New  Orleans,  &c.  Co.  v.  Patton,  id.  352;  Citizens'  Bank  v.  Walker, 
id.  791  ;  Bank  of  Louisiana  v.  Tournillon,  9  id.  132;  Farmers',  &c.  Bank  v.  Battle, 
4  Humph.  86  ;  Hazelton  Coal  Co.  v.  Ryerson,  Spencer,  129  ;  Walker  v-  Bank  of  Au- 
gusta, 3  Ga.  486  ;  Moore  v.  Hardcastle,  11  Md.  486  ;  Gist  v.  Lybrand,  3  Oliio,  307  ; 
Glasscock  V.  Bank  of  Mo.,  8  Misso.  443. 

(s)  Bank  of  Columbia  v.  Lawrence,  1  Pet.  578 ;  Rcid  v.  Payne,  16  Johns.  218  ;  Bank 
of  Geneva  v.  Howlett,  4  Wend.  328  ;  Ransom  v.  Mack,  2  Hill,  587  ;  Morris  v.  Husson, 
4  Sandf.  93  ;  Wliittlesei/,  J.,  Seneca  Co.  Bank  v.  Neass,  5  Denio,  329,  338.  See  Mont- 
gomery Co.  Bank  v.  Marsh,  3  Seld.  481  ;  Sliaw,  C.  J.,  Chouteau  v.  Webster,  6  Met. 
1,  6:  Bank  of  Columbia  v.  Magrudcr,  6  Harris  &  J.  172;  Grand  Gulf,  &c.  Co.  v. 
Banies,  12  Rob.  La.  127  ;  Bird  v.  McCalop,  2  La.  Ann.  351 ;  New  Orleans,  &c.  Co. 
V.  Patton,  id.  352  ;  Glasscock  v.  Bank  of  Mo.,  8  Misso.  443. 

{!)  Bank  of  U.  S.  V.  Carneal,  2  Pet.  543.  The  earlier  cases  on  this  point  in  Louisiana 
held  tliat  the  notice  must  be  sent  to  tiie  nearest.  Mechanics',  &c.  Bank  v.  Compton, 
3  Rob.  La.  4  ;  Nicholson  v.  Marders,  id.  242  ;  Mead  v.  Carnal,  6  id.  73.  In  Follain  v. 
Duprc,  11  id.  454,  it  was  held  that,  where  there  was  only  a  difference  of  a  mile  or  two 
in  the  distances  of  the  offices  from  tlic  indorser's  residence,  the  notice  might  be  sent  to 
cither.  And  in  the  later  cases  —  New  Orleans,  &c.  Co.  i'.  Briggs,  12  id.  175  ;  Bank  of 
Louisiana  >;.  Tournillon,  9  La.  Ann.  132  —  it  is  held  that,  where  there  arc  two  or 
more  usual  offices,  notice  may  be  sent  to  either. 


CH.  XII.]  TO    WHOM   NOTICE   SHOULD    BE    GIVEN.  499 

SECTION    IT. 

TO    WHOM   NOTICE    SHOULD    BE    GIVEN. 

Upon  the  question  to  whom  notice  must  be  given,  altliough 
the  practice  is  sufficiently  uniform,  it  is  not  easy  to  state  a  rule 
which  meets  all  the  cases.  We  think,  however,  that  the  true 
rule,  although  it  may  not  reconcile  all  the  authorities,  and  indeed 
must  be  open  to  some  exceptions,  should  be  this  :  Every  person 
who,  by  and  immediately  upon  the  dishonor  of  the  note  or  bill, 
and  only  upon  such  dishonor,  becomes  liable  to  an  action,  either 
on  the  paper,  or  on  the  consideration  for  which  the  paper  was 
given,  is  entitled  to  immediate  notice. 

Notice  should  certainly  be  given  to  all  the  parties,  but  the 
holder  is  bound  to  give  notice  only  to  the  indorser  whom  he 
intends  to  hold  liable,  and  he  may  charge  a  subsequent  indorser 
without  notifying  a  prior,(M)  or  a  prior  without  notifying  a  sub- 
sequent one,(i;)  provided  the  party  whom  he  notifies  exercises 
his  right  to  secure  himself  by  giving  notice  further.  Notice  may 
certainly  be  given  to  the  agent  of  the  party  to  be  notified,  (ti;)  It 
has  been  said  that  strict  proof  of  authority  to  receive  notice  is 
required, (x)  but  this  cannot  apply  where  notice  is  properly  left 
at  the  place  of  business  or  of  abode  of  the  party  to  be  notified, 
because  a  notice  left  there  with  any  one  who  is  found  on  the 


(a)  Baker  v.  Morris,  25  Barb.  138 ;  Morgan  v.  Van  Ingen,  2  Johns.  204  ;  Morgan 
V.  Woodworth,  3  Johns.  Cas.  89;  Carter  i;.  Bradley,  19  Maine,  62;  State  Bank  v. 
Hennen,  16  Mart.  La.  226;  Peyroux  v.  Dubertrand,  11  La.  32 ;  McCuUock  v.  Com- 
merciiil  Bank,  16  id.  566  ;  Union  Bank  v.  Lea,  7  Rob.  La.  76;  Union  Bank  v.  Hyde, 
id.  418;  Grand  Gulf,  &c.  Co.  v.  Barnes,  12  id.  127;  Watson  v.  Templeton,  11  La. 
Ann.  137  ;  Lawson  v.  Farmers'  Bank,  1  Ohio  State,  206  ;  Wilcox  v.  Mitchell,  4  How. 
Miss.  272  ;  Valk  v.  Bank  of  South  Carolina,  1  McMuUan,  Eq.  414  ;  Mathews  v.  Fogg, 
1  Rich.  369  ;  Whitman  v.  Farmers'  Bank,  8  Port.  Ala.  258. 

(v)  Harrison  v.  Ruscoe,  15  M.  &  W.  231. 

(lu)  Hestres  v.  Petrovie,  1  Rob.  La.  119;  Wilkins  v.  Commercial  Bank,  6  How. 
Miss.  217.  An  attorney  at  law  is  not  authorized  to  receive  notices  for  his  client  unless 
by  special  authority.  Louisiana  State  Bank  v.  Ellery,  16  Mart.  La.  87.  In  Fortner 
17.  Parham,  2  Smedes  &  M.  151,  delivery  of  a  notice  to  the  indorser's  clerk  in  the 
street,  without  proof  of  its  reception,  or  of  the  clerk's  authority  to  receive  it,  was  held 
(nsuflScient.  In  Patcrson  Bank  v.  Butler,  7  Ilalst.  268,  notice  delivered  to  a  stranger, 
who  said  he  was  the  indorser's  brother,  was  held  insuflScient. 

[x/  Montillet  v.  Duncan,  11  Mart.  La.  534. 


500  NOTES   AND   BILLS.  [CH.  XH 

premises  would  ordinarily  be  sufficient. (//)  "We  have  seen  that 
a  presentment  to  any  one  there  would  be  sufficient, (2^)  and  if 
this  is  true  where  something  is  expected  to  be  done  by  the  party 
of  whom  the  demand  is  made,  it  certainly  is  true  where  nothing 
is  to  be  done  except  to  receive  a  notice. 

Authority  to  indorse  negotiable  paper  has  been  held  not  to 
carry  with  it  authority  to  receive  notice  of  dishonor, (a)  but  an 
opinion  to  the  contrary  has  been  expressed. (Z>) 

If  an  agent  draws  a  bill  in  his  own  name,  notice  must  be  given 
to  him,  and  if  given  to  his  principal,  who  is  no  party  to  the  paper, 
it  will  not  be  sufficient,  (c) 

If  a  person  entitled  to  notice  be  bankrupt,  notice  should  be 
given  to  him,  if  his  assignees  are  not  yet  appointed. (c?)  If  they 
are,  notice  should  perhaps  be  given  to  them,  if  the  fact  of  their 
appointment  is  known  to  the  holder,  or  might  be  known  by  him 
hy  the  exercise  of  due  diligence, (e)  but  notice  might  perhaps  even 
then  be  sufficient  if  given  to  the  bankrupt.  Under  our  Stato 
insolvent  laws,  and  wherever  the  point  has  not  been  settled  by 
decision  or  a  positive  usage,  it  would  seem  to  be  the  safest  course 
to  give  notice  both  to  the  insolvent  and  to  the  assignees  also. 

If  the  insolvent  has  absconded,  notice  should  be  given  to  the 
assignees  ;  (/)  and  if  they  are  not  appointed,  we  should  suppose 
that  a  delay  until  their  appointment  would  not  discharge  any 
one  ;  and  although  notice  may  be  given  to  any  one  holding  or 
representing  the  estate, (;§•)  we  should  think  it  better  to  notify  the 
assignees  when  appointed. 

If  the  indorser  is  dead  at  the  time  the  note  matures,  and  this 


(y)  Cromwell  v.  Hynson,  2  Esp.  511  ;  Housego  v.  Cowne,  2  M.  &  W.  348,  where 
notices  left  at  the  indorser's  house  with  his  wife  were  held  sufficient. 

(z)  Supra,  p.  489,  note  z. 

(a)  Valk  V.  Gaillard,  4  Strob.  99 ;  Sharkei/,  C.  J.,  Wilcox  v.  Routh,  9  Smedes  & 
M.  476,  483. 

(h)  Lord  Tenterden,  C.  J.,  Firth  v.  Thrush,  8  B.  &  C.  387. 

(c)  Grosvenor  v.  Stone,  8  Pick.  79.  In  Clay  v.  Oakley,  17  Mart.  La.  137,  it  was 
held,  that,  where  the  agent  indorses  in  the  principal's  name,  notice  to  the  hitter  is  suffi- 
cient. Whether  it  might  he  safely  given  to  the  agent  in  such  case  may  dc|)cnd  upon  tho 
question  whether  an  authority  to  indorse  carries  with  it  an  authority  to  receive  notice. 

(ri)  Sec  Ex  parte  Moline,  19  Ves.  216. 

{c)  Sec  Kohde  v.  Proctor,  4  B.  &  C.  517,  C  Dow.  &  II.  610  ;  Ex  parte  Johnson,  3 
Dcac.  &  C.  433, 1  Mont.  &  A.  622  ;  Ex  parte  Chappd,  3  Mont.  &  A  490,  3  Dcac.  218. 

(/)  Rohde  V.  Proctor,  4  B.  &  C.  .')I7,  C  Dow.  &  11.  610. 

Ig)  Sec  Rohde  v.  Proctor,  4  B.  &  C.  517,  G  Dow.  &  R.  610. 


CH.  Xn.]  TO   WHOM   NOTICE   SHOULD   BE   GIVEN.  501 

fact  is  known  to  the  holder,  notice  must  be  sent  to  his  adminis- 
trators or  executors,  if  it  can  be  ascertained  by  reasonable  inqui- 
ries who  and  where  they  are,(/i)  and  a  notice  directed  to  the 
deceased  by  name  will,  under  such  circumstances,  be  insufficient 
to  charge  the  estate.  If  the  death  is  not  known,  and  nothing 
appears  to  show  that  the  sender  ought  to  have  known  this  fact, 
notice  addressed  to  the  deceased  indorser  will  be  sufficient, (t) 
and  the  same  would  be  true  where  the  holder  cannot  by  reason- 
able diligence  ascertain  whether  there  is  an  administrator  or 
executor,  or  who  he  is  or  where  he  resides. (j) 

It  may  not  always  be  necessary  to  designate  the  administrator 
or  executor  by  name.  Thus,  where  the  notary,  being  ignorant 
as  to  who  the  administrator  or  executor  was,  sent  the  notice 
directed  to  the  "legal  representative"  of  the  indorser,  but  mailed 
to  his  last  place  of  residence,  this  Avas  held  sufficient,  although 
the  notary  might  have  ascertained  the  name  without  much 
trouble,  on  the  ground  that  "  legal  representative  "  and  "  admin- 
istrator "  or  "  executor"  are  synonymous  terms. (/c) 


(h)  Oriental  Bank  v.  Blake,  22  Pick.  206,  where  the  holder,  knowing  that  the  indorser 
was  dead,  left  the  notice  af  his  last  place  of  residence.  Held  insufficient.  So  Cayuga 
Co.  Bank  v.  Bennett,  5  Hill,  236,  where  the  holder  knew  of  the  indorser's  death, 
that  his  will  had  been  proved,  and  that  it  was  in  the  surrogate's  office,  in  the  village 
where  the  holder  lived.  In  Barnes  n.  Reynolds,  4  How.  Miss.  114,  the  notice  was  sent 
to  the  indorser's  last  residence.  The  judge  charged  the  jury,  that  if  the  holder  knew 
of  the  death  of  the  indorser,  and  could  by  ordinary  diligence  have  ascertained  who  his 
executors  were,  it  was  incumbent  on  him  to  give  them  notice  ;  but  if  the  holder  did  not 
know  of  the  death,  or  by  ordinary  diligence  could  not  have  ascertained  who  wore  the 
executors,  the  notice  directed  to  the  intestate  was  sufficient.  Held  correct,  and  a  ver- 
dict for  the  plaintiff  was  sustained.  Where  an  indorser  died  eight  months  before  the 
note  matured,  notice  directed  to  him  was  held  bad,  in  the  absence  of  proof  by  the 
plaintiff  of  due  diligence  in  ascertaining  who  were  the  representatives.  Bank  of  Lou- 
isiana V.  Smith,  4  Rob.  La.  276.  But  where  the  heir  has  been  put  in  possession  of  the 
estate  before  maturity,  notice  directed  to  the  indorser's  legal  representative  is  not  suf- 
ficient. Christmas  v.  Fluker,  7  id.  13.  But  notice  should  be  sent  to  the  executor, 
although  the  heir  had  been  recognized,  had  given  security,  and  taken  possession,  if  the 
executor  has  not  rendered  any  account,  nor  received  from  the  heir  the  money  neces- 
sary to  pay  tlie  debts.  New  Orleans,  &c.  Co.  v.  Kerr,  9  Rob.  La.  122.  See  the  case? 
cited  infra,  chapter  on  Excuses  for  Want  of  Notice. 

[i]  Merchants'  Bank  v.  Birch,  17  Jolnis.  25  ;  Planters'  Bank  v.  White,  2  Humph. 
112.  See  Bcals  v.  Peck,  12  Barb.  24.5  ;  Barnes  v.  Reynolds,  4  How.  Miss.  114,  supra. 
note  h.  Lapse  of  time  may  have  the  effect  of  requiring  the  plaintiff  to  prove  due  dili- 
gence.    See  Bank  of  Louisiana  v.  Smith,  4  Rob.  La.  276,  supra,  note  k. 

(j)  Metcalf,  J.,  Mass.  Bank  v.  Oliver,  10  Cush.  557  ;  Stewart  v.  Eden,  2  Caines,  121 ; 
Barnes  v-  Reynolds,  4  How.  Miss.  114,  supi-a,  note  h. 

{k)  Pillow  V.  Hardeman,  3  Humph.  538. 


502  ^  NOTES   AND   BILLS.  [CH.  XH. 

But  a  notice  sent  to  the  "  estate "  of  a  deceased  was  held 
insufficient,  where  the  name  of  the  administrator  could  have 
been  ascertained  without  much  difficulty. (/)  The  reason  given 
was,  that  the  word  "  estate  "  was  too  ambiguous,  comprehend- 
ing the  heir-at-law  equally  with  the  administrator  or  executor. 
In  all  these  cases,  as  in  many  others,  if  it  reaches  the  adminis- 
trator or  executor  seasonably,  the  notice  will  be  good,  and  proof 
of  its  reception  will  supply  any  defects  in  the  sending,  (m)  No- 
tice to  one  of  several  administrators  or  executors  has  been  held 
sufficient,  on  the  ground  that  they,  like  partners,  all  represent 
one  and  the  same  interest,  (/i) 

Notice  to  one  member  of  a  partnership  which  indorses  a  note 
or  bill  is  notice  to  all,  because  each  partner  represents  tlie  inter- 
ests of  the  other  partners  and  of  the  partnersliip,(o)  and  the  same 
has  been  held  where  the  notice  has  been  given  after  dissolution 
and  publication. (;?)  So  if  one  of  the  firm  dies  before  maturity, 
notice  to  the  surviving  partner  is  sufficient  to  hold  the  estate  and 
the  legal  representative  of  the  deceased. (^)  If  a  bill  be  drawn 
on  the  firm  by  one  partner,  and  accepted  by  him,  notice  of  dis- 
honor need  not  be  given  to  the  firm.(r) 

But  the  interests  of  each  joint  indorser  are  not  so  far  similar 
that  notice  to  one  is  notice  to  all ;  they  should  all  be  notified ;  (s) 
nor  should  a  notice  to  any  mere  member  of  a  joint-stock  com- 


(/)  Mass.  Bank  v.  Oliver,  10  Cush.  557. 

(m)  Cowen,  J.,  Cayuga  Co.  Bank  v.  Bennett,  5  Hill,  236.  Sec  Beals  v.  Peck,  12 
Barb.  245  ;  Mass   Bank  v.  Oliver,  10  Cu.sh.  557. 

(?i)  Beals  V.  Peck,  12  Barb.  245  ;  Lewis  v.  Bakewell,  6  La.  Ann.  359,  where  notico 
was  given  to  the  maker,  one  of  three  executors  of  the  indorser. 

(o)  Nott  V.  Douming,  6  La  680,  684  ;  Mageo  v.  Dunbar,  10  id.  546.  See  Beals  v. 
Peck,  12  Barb.  245,  251  ;  Willis  v.  Green,  5  Hill,  232  ;  and  cases  cited  infra,  note  r. 

{p)  Coster  r.  Thomason,  19  Ala.  717. 

iq)  Cocke  V.  Bank  of  Tcnn  ,  6  Humph.  51  ;  Dabney  v.  Stidger,  4  Smedcs  &  M.  749. 

(r)  Khctt  V.  Poe,  2  How.  457  ;  Fuller  v.  Hooper,  3  Gray,  334  ;  Gowan  v.  Jackson, 
20  Johns.  176  ;  Porthouse  v.  Parker,  1  Camp.  82  ;  Bignold  v.  Watcrhouse,  1  Maulc  A 
S.  255. 

(s)  Shcpard  v.  Hawley,  1  Conn.  367  ;  Willis  v.  Green,  5  Hill,  232 ;  Bonis  r.  Peck, 
12  Barb  245.  Sec  Bank  of  Chenango  v.  Root,  4  Cowen,  126;  Sayrc  v.  Frick, 
7  Watts  &  S.  383  ;  Miser  v.  Trovinger,  7  Ohio  State,  281  ;  State  Bank  v.  Slaughter, 
7  Blackf.  133;  Dabney  v.  Stidger,  4  Smcdes  &  M.  749;  Wood  v.  Wood,  1  Harri- 
son, 429.  Contm,  Dodge  v.  Bank  of  Ky.,  2  A.  K.  Marsh.  610,  615;  Hijgins  v. 
Morrison,  4  Dana,  100,  105  ;  Byles  on  Bills,  p.  229,  citing  Porthouse  v.  Parker,  1 
Camp.  82.  In  this  case,  however,  by  the  head  note,  it  ai)pears  tiiat  tiie  drawers  wcro 
partners. 


CII.  XII.]  BY    WHOM   NOTICE   SHOULD    BE    GIVEN.  503 

paiiy,  who  was  not  an  officer  nor  agent  of  the  company,  suffice  to 
bind  the  corporation. (^) 

If  one  not  a  party  to  the  note  assign  it  without  indorsement, 
he  is  not  entitled  to  strict  notice. (z<)  But  where  an  action  on 
the  consideration  or  on  the  paper,  as  on  guaranty  or  the  like, 
accrues  to  the  transferee,  we  should  say  the  transferrer  was 
entitled  to  have  notice  given  him.(y)  "We  shall  also,  under  the 
subject  of  Guaranty,  see  that  a  guarantor  of  a  promissory  note  is 
entitled  only  to  have  such  notice  as  shall  be  actually  sufficient 
for  his  safety,  and  cannot  in  general  defend  himself  by  showing 
want  of  notice,  without  showing  also  actual  injury. (i^) 


SECTION    V. 

BY    WHOM    NOTICE    SHOULD    BE    GIVEN. 

There  appoars  to  be  considerable  confusion  in  the  language  of 
the  courts,  and  in  the  cases,  with  reference  to  the  party  by  wliom 
notice  should  be  given.  Thus  it  has  been  said  that  notice  mtist 
come  from  the  holder,  and  that  d!  notice  given  by  any  other  party 
was  insufficient,  because  the  drawer  or  indorser  is  not  apprised 
thereby  of  the  holder's  intention  to  look  to  him  for  payment. (a;) 

It  has  also  been  said  that  it  makes  no  difference  who  apprises 
the  drawer,  since  the  object  of  the  notice  is  that  the  drawer  may 
have  recourse  to  the  acceptor. (y) 

It  has  likewise  been  said  that  any  party  to  the  bill  may  give 
notice.  (2r) 

The  first  of  these  propositions  is  clearly  inaccurate,  because  it 
has  long  been  settled  that  a  notice  properly  given  by  a  prior 
indorser,  in  due  time,  will  enure  to  the  benefit  of  the  subsequent 


(t)  See  Powles  v.  Page,  3  C.  B.  16. 

((()  Van  Wart  v.  Wooley,  3  B.  &  C.  439,  445 ;  Swinyard  v.  Bowes,  5  M.  &  S.  62. 

(v)  Infra,  Vol.  II.  p.  137. 

(w)  infm,  Vol.  II.  p.  137. 

(r)  Tindal  v.  Brown,  1  T.  R.  167,  2  id.  186  ;  Ex  parte  Barclay,  7  Ves.  597.  These 
uJtses  were  expressly  overruled  by  Chapman  v.  Keane,  3  A.&  E.  193,  4  Nev.  &  M.  607, 

(v)  Lord  Kenipti,  Shaw  v.  Croft,  Chitty  on  Bills,  p.  333. 

{z]  3  Kent.  Com.  108;  Lord  Ellenhorouyh,  Wilson  v.  Swabey,  1  Stark.  34;  Glasg-ow 
i;.  Pratte,  8  Misso.  336.  See  Glasscock  v.  Bank  of  Mo.,  id.  443  ;  Walker  v.  Bank  of 
Mo.,  id.  704  ;  Duncan,  J.,  Juniata  Bank  v.  Hale,  16  S.  &  R.  157,  160. 


n04  NOTES   AND   BILLS.  [CH.  XIL 

parties. (fi)  Thus,  if  the  holder  duly  notifies  the  sixth  indorser, 
and  he  the  fifth,  and  he  the  fourth,  and  he  the  third,  and  lie  the 
second,  and  he  the  first,  the  latter  will  be  liable  to  all  the  par- 
ties. (Z>)  So  notice  duly  given  by  a  subsequent  indorser  to  the 
prior  indorser  will  enure  to  the  benefit  of  all  up  to  the  first. (c) 
Thus,  if  the  holder  in  the  case  supposed  duly  notified  all  the 
indorsers,  the  first  indorser  will  be  liable  to  all,  although  the 
holder  was  the  only  party  to  give  the  notice. 

The  second  proposition  cannot  be  true,  because  it  is  equally 
well  settled  that  notice  cannot  be  given  by  a  stranger  to  the  note 
or  bill.(^) 

The  third  proposition  is  inaccurate,  because  it  is  clear  that  no- 
tice cannot  be  given  by  any  party  who  is  himself  discharged  by 
the  laches  of  any  prior  party,  either  on  his  own  account, (e)  or 
for  the  benefit  of  other  parties  to  the  bill.(/)  There  appears  to 
be  much  doubt  whether  notice  given  by  the  acceptor  who  refuses 
to  pay  is  a  good  notice,  which  can  enure  to  the  benefit  of  any 
other  party.  It  has  been  decided  that  a  notice  so  sent  to  the 
drawer  is  sufficient  to  bind  him.(^'-)  But  this  has  been  much 
questioned, (/i)  on  the  ground  that  one  of  the  objects  of  sending 


{a)  Jameson  v.  Swinton,  2  Camp  373,  2  Taunt.  224;  Wilson  v.  Swabcy,  1  Stark. 
.34  ;  Bray  v.  Hadwcn,  .5  Maule  &  S.  GS ;  Cliapman  v.  Kcaiie,  3  A.  &  K.  193,  4  Ncv. 
&  M.  607  ;  Lysaght  v.  Bryant,  9  C.  B.  46  ;  TripKnt  r.  Hunt,  3  Dana,  126  ;  Wliiiman 
V.  Farmers'  Bank.  8  Port.  Ala.  2.i8 ;  Wilcox  ;;.  .Mitchell,  4  How.  Miss.  272  ;  Hcnsliaw 
r.  Triplett,  23  Misso.  213;  Glasscock  v.  Bank  of  Mo.,  8  Misso.  443  Sec  Baker  v. 
Morris,  25  Barb.  138. 

(b)  In  Hilton  v.  Shepherd,  6  East,  14,  note  c,  there  were  six  indorsers,  and  notice 
was  regularly  given  by  the  indorsers  in  succession.  The  second  sued  the  first  indorser, 
and  recovered. 

(c)  Stafford  v.  Yates,  18  Johns.  327;  Abat  v.  Kion,  9  Mart.  La.  46.5;  Marr  v. 
Johnson,  9  Yerg.  1  ;  Wilcox  v.  Mitchell,  4  How.  Miss.  272.  Whether  this  is  confined 
to  the  case  of  actual  reception  by  the  party  to  be  charged,  or  whether,  if  a  subsequent 
indorser,  after  using  due  diligence,  sends  the  notice  to  the  wrong  place,  this  enures  to 
the  benefit  of  any  party,  is  considered  infra,  p.  627. 

{(I)  Stewart  V.  Keniiett,  2  Camp.  177;  Chanoine  v.  Fowler,  3  Wend.  173;  Duncan, 
J  ,  Juniata  Bank  v.  Hale,  16  S.  &  II.  157,  IGO;  Tuck,  J.,  Brailsford  v.  Williams,  15 
Md.  150,  158. 

(e)  Turner  v.  Leech,  4  B.  &  Aid.  451  ;  Rowe  v.  Tipper,  13  C.  B.  249. 

(/)  See  Harrison  v.  Ruscoe,  15  M.  &  W.  231. 

(//)  By  Lord  Kenyon,  at  Nisi  Prius,  in  Slmw  v.  Croft,  Chitty  on  Bills,  p.  333  ; 
Lord  /illi>iboioi(;/h,  in  Roshcr  v.  Kicran,  4  Camp.  87;  Brailsford  v.  Williams,  16  Md. 
150  ;  Union  Bank  v.  Grimshaw,  15  La.  321. 

(/()  Baylfj  on  Bills,  Gth  London  cd.  250;  Chitty  on  Bills,  .3,33  ;  Bylc,'!  u:.  Hills,  214; 
Story,  I)  301.      In   Harrison  v.  Huscoc,  15  M.  &  W.  231,  f^lrkr,  B.,  after  (jiot'ng  the 


CH.  Xn.]  BY   WHOM   NOTICE   SHOULD    BE   GIVEN.  505 

notice  is  to  inform  the  party  to  whom  it  is  sent  that  he  is  looked 
to  for  payment  by  the  party  wlio  sends ;  and  inasmucb  as  the  ac- 
ceptor who  refuses  to  pay  has  no  ckxim  upon  the  drawer,  or  on 
any  party  to  the  bill,  he  cannot  make  any  demand.  A  drawee 
who  refuses  to  accept  is  not  a  proper  party  to  give  notice  ;  {i)  and 
it  is  somewhat  difficult  to  see  what  difference  there  is  in  the  case 
of  an  acceptor  refusing  to  pay. 

It  seems  also  to  have  been  licld  that  the  maker  may  give  no- 
tice.(/)  On  the  whole,  we  do  not  see  why,  if  the  party  primarily 
liable  is  a  proper  person  to  give  notice,  a  mere  stranger  may  not. 
Our  own  method  of  stating  the  rule,  independently  of  tliese  au- 
thorities, would  be,  that  notice  may  be  given  by  any  party  to  a 
note  or  bill,  not  primarily  liable  thereon  as  regards  tiiird  parties, 
and  not  discharged  from  liability  upon  it  at  the  time  notice  is 
given. 

It  will  not  be  understood  that  these  remarks  apply  to  an  ac- 
ceptor siipi'a  protest,  as  it  is  within  his  power  to  give  notice  of 
the  dishonor  by  the  original  drawer,  and  he  will  have  a  claim 
founded  thereon,  and  on  his  own  acceptance. (^') 

The  holder  may  of  course  give  notice  by  his  agent,(^)  who  may 
give  the  notice  in  his  own  name,(;«)  or  in  the  name  of  one  of  the 
other  parties. (w)  But  in  this  last  case,  the  party  charged  by  the 
notice  will  ho  entitled  to  insist  on  any  defence  against  tiie  real 
principal  which  he  miglit  have  made  against  the  party  from  whom 
the  notice  purported  to  come.(o) 

A  person  to  whom  a  note  is  indorsed  for  the  purpose  of  collec- 

rule  laid  down  by  Judge  Story  with  appvohation,  said  :  "  The  rule  equally  excludes  the 
case  of  notice  by  an  acceptor,  who  never  could  sue  himself  upon  the  bill  after  taking 
it  up  ;  and  the  instances  in  which  a  notice  b}'  an  acceptor  has  been  held  good  at  Nisi 
Prius  are  explained  by  Mr.  Justice  Bayley,  on  the  supposition  that  in  these  the  ac- 
ceptor had  a  special  authority  to  do  so." 

(i)  Stanton  v.  Blossom,  14  Mass.  116. 

(./)  Glasgow  V.  Pratte,  8  Misso.  336. 

(k)   Sit/irn.  p.  319. 

(/)  Harris  v.  Kobinson,  4  How.  336  ;  Tunno  v.  Lague,  2  Johns.  Cas.  1  ;  Shed  v. 
Brett,  1  Pick.  401  ;  Follain  v.  Dupre',  11  Hob.  La.  454,  470;  Walker  v.  Bank  of  Mo., 
8  Misso.  704;  Crawford  v.  Branch  Bank,  7  Ala.  205,  213.  In  East  v.  Smith,  4  Dow. 
&  L.  744,  it  was  doubted  by  Coleridge,  J.  whether  a  tradesman's  foreman  or  servant  was 
n  proper  party. 

(m)  Woodthorpe  v.  Lawes,  2  M.  &  W.  109. 

(n)  Rogcrson  v.  Hare,  1  WiHm.  W.  &  D.  65,  1  Jur.  71  ;  Harrison  v.  Ruscoe,  15 
M.  &  W.  231. 

(d)   Harrison  v.  Ruscoe,  15  M.  &  W.  231. 

\  OL.  I.  43 


506  NOTES   AND   BILLS.  [CH.  XIL 

tion  is  a  proper  party  to  give  notice ;  (p)  and  so  is  a  notary  to 
wliom  the, note  is  handed  to  protest,(9)  though  the  latter  officer  is 
not  obliged  to  give  it.(r) 

If  the  holder  is  dead,  notice  should  be  given  by  his  administra- 
tor or  executor,  if  any  are  appointed ;  (s)  and  if  no]ie  are  ap- 
pointed at  the  time  of  maturity,  the  indorser  will  not  be  dis- 
charged, provided  notice  is  sent  to  him  within  a  reasonable  time 
after  his  appointment. (^)  So  it  would  be  if  the  note  or  bill  is 
not  discovered,  or  its  existence  known  to  the  administrator  at 
maturity,(z*)  provided  the  administrator  is  not  guilty  of  laches 
in  not  finding  it,  and  forwards  the  notice  immediately  after 
finding  it. 

It  has  been  held  that  a  signature  is  essential  to  a  notice,  be- 
cause if  a  notice  is  not  signed,  it  cannot  be  said  to  be  given  by 
any  person  ;  {v)  but  it  has  been  also  said  that  a  notice  was  good 
whetlier  signed  or  not,{w)  and  we  have  also  seen  that  it  need  not 
state  who  the  holder  was  at  the  time  of  maturity. (.^•) 

It  has  been  said  that  it  is  the  duty  of  a  notary  who  makes  a 
protest  to  give  notice  of  it.{xa)  But  although  it  is  usual  and 
convenient  for  the  notary  to  give  notice,  and  he  has  undoubtedly 
sufficient  authority  to  do  this  as  the  agent  of  the  holder,  it  is 
quite  certain  tliat  this  is  no  part  of  his  official  diity.{xb) 


SECTION     VI. 

AT    WHAT    TLME    NOTICE    SHOULD    BE    GIVEN. 

One  of  the  most  important  questions  under  the  law  of  notice 
is.  Within  what  time  must  the  notice  be  sent  ?     The  rule,  as  laid 

(p)  Ogden  V.  Dobbin,  2  Hall,  112.    So  it  may  be  given  by  his  agent.    Cowp»,r 
thwaite  V.  SbefTield,  1  Saudf.  416,  3  Comst.  243. 
(l)  ^'{/'■«>  P-  645. 
(r)  Iri/m,  p.  645,  note  /. 
(s)  Story  on  Prom.  Notes,  §  304. 
(0   /"/'•«,  p.  559. 
(u)  Infra,  p.  559. 

(»)  Wulkcr  V.  Bank  of  Mo.,  8  Misso.  704. 

{w)  Ilcniliison,  J.,  Hank  of  Capo  Fear  v.  Scawell,  2  Hawks,  660. 
(x)  ,S'u/>r«,  p.  473,  note. 

(xa)   Cowin,  J.,  in  Halliday  v.  McDoagall,  20  Wcmi.  <,6. 
(xb)  Hurke  v.  McKay,  2  How.  66. 


I 


CH.  XII.]  AT    WHAT    TIME   NOTICE   SHOULD   BE    GIVEN.  507 

down  in  the  earlier  English  cases, (//)  and  in  some  of  the  Ameri- 
can cases,(c)  was,  that  notice  must  be  sent  within  a  reasonable 
time  after  dishonor,  and  that  what  was  a  reasonable  time  was  a 
question  of  fact  for  the  jury.  Now,  however,  the  courts  have 
fixed  this  period  so  definitely  as  a  matter  of  law,  that  it  hardly 
seems  appropriate  to  speak  of  it  as  a  merely  reasonable  time, 
although  this  continues  to  some  extent  to  be  the  language  both 
of  text-writers  and  of  judicial  decisions. (a) 


{//)  We  have  already  seen  that  originally  the  rule  was,  that  a  demand  and  protest 
might  be  made  in  a  reasonable  time  after  the  day  a  note  or  bill  matured.  In  Kussel  v. 
Langstaffe,  2  Doug.  514,  one  of  the  notes  was  payable  Sept.  22,  two  on  Sept.  27,  and 
two  on  Oct.  4.  The  plaintiff  notified  the  indorser  on  Oct.  14.  Objection  was  made 
that  this  Wiis  not  in  time.  The  counsel  for  the  defendant  "admitted  that  what  shall  be 
deemed  reasonable  notice  to  an  indorser  of  non-payment  by  the  drawer  ought  properly 
to  be  decided  by  the  jury,  but  said  it  was  well  established  that  such  notice  ought  to  be  as 
early  as  possible.  That  where  the  parties  live  at  a  distance,  the  notice  ought  to  be  given 
by  the  first  post,  but  that  here  the  parties  lived  in  the  same  town,  and  no  notice  had  been 
given  till  ten  days  after  the  time  of  payment,  even  in  the  case  of  the  notes  payable  in 
October."  But  the  case  turned  on  another  point.  In  Hilton  v.  Sfiepard,  6  East,  14, 
note  c,  Hopes  v.  Alder,  id.  16,  note,  Lord  Kenyon  thought  the  question  to  be  one  for 
the  jury,  notwithstanding  the  case  of  Tindal  v.  Brown,  1  T.  R.  167. 

(z)  The  early  cases  in  Pennsylvania  do  not  appear  to  be  quite  consistent.  In  Stein- 
metz  V.  Currcy,  1  Dall.  234,  270,  the  court  admit  tliat  notice  must  be  given  in  a  reason- 
able time,  but  set  aside  a  verdict  for  the  phiintifF  where  there  had  been  a  delay  of  over 
two  years,  holding  that  the  war  which  then  existed  was  no  excuse  for  so  long  a  delay,  the 
parties  living  within  one  hundred  and  fifty  miles  of  each  other.  But  in  the  following 
cases  the  time  was  held  a  matter  of  fact  for  the  jury.  Robertson  v.  Vogle,  1  Dall.  252  ; 
Bank  of  North  America  v.  Vardon,  2  id.  78;  Bank  of  North  America  v.  M'Kiiight,  id. 
158,  I  Yeates,  145,  where  there  was  a  delay  of  one  day  ;  Mallory  v.  Kinvan,  2  Dall.  192 ; 
Warder  v.  Carson,  id.  233,  1  Yeates,  531  ;  Bank  of  North  America  v.  Pettit,  4  Dall. 
127;  Gurly  v.  Gettysburg  Bank,  7  S.  &  R.  324,  where  there  was  a  delay  of  five 
days,  and  a  verdict  for  the  plaintiff  was  sustained.  There  seems  to  be  a  similar  con- 
flict in  the  cases  in  North  Carolina.  In  Pons  v.  Kelly,  2  Hayw.  45,  it  was  held  that 
the  court  are  to  judge  of  what  is  reasonable  time.  In  London  v.  Howard,  id.  332,  it 
was  subniitterf  to  the  jury,  the  judge,  however,  expressing  to  them  his  opinion  that  tea 
days'  delay  was  too  much.  The  jury  found  for  the  defendant.  In  Brittain  v.  Johnson, 
1  Dev.  293,  the  reasonable  time  was  held  a  matter  of  fact,  and  also  that  the  strict  rules 
as  to  negotiable  paper  did  not  apply,  as  between  farmers  in  the  country.  In  Brahan 
V.  Ragland,  Minor,  85,  the  question  was  held  to  be  one  of  fact.  So  Hager  v.  Boswell, 
4  J.  J.  Marsh.  61. 

(a)  In  Tindal  v.  Brown,  1  T.  R.  167,  notice  was  not  given  until  two  days  after  the  note 
matured  The  jury  found  for  the  plaintiff,  and  a  new  trial  was  granted.  A  second 
verdict  for  the  plaintiff  was  likewise  set  aside,  and  a  third  resulted  in  a  verdict  for  the 
defendant.  This  judgment  was  affirmed  in  the  Exchequer  Chamber,  2  T.  R.  186.  See 
Darbishire  v.  Parker,  6  East,  3.  In  Furze  v.  Sharwood,  2  Q.  B.  388,  415,  Lord  Den- 
man,  C.  J.  said  :  "  Perhaps  Lord  Mansfield  never  conferred  so  great  a  benefit  on  the 
commercial  world  as  by  his  decision  in  Tindal  i'.  Brown,  where  his  perseverance 
compellea  them,  in  spite  of  themselves,  to  submit  to  the  doctrine  of  requiring  immedi- 


608  XOTES   AND   BILLS.  [CH.  XH. 

It  is  clear  that  there  can  be  no  notice  without  a  prior  demand, 
because  notice  must  be  based  upon  the  fact  that  presentment  has 
been  made,  and  payment  refused. (Z>) 

There  appears  to  be  some  want  of  precision  in  the  language  of 
the  text-writers,  and  of  some  of  the  courts,  in  laying  down  the 
rule  as  to  the  time  within  which  notice  must  be  deposited  in  the 
post-office  in  order  to  charge  the  indorsers.  One  eminent  jurist 
has  expressed  an  opinion  that  notice  will  be  sufficient  if  mailed 
at  any  time  on  the  day  after  dishonor,  although  it  may  not  be  in 
season  to  go  by  the  mail  of  that  day.(c)  But  this  opinion  is  open 
to  the  objection,  that  it  would  be  almost  necessarily  giving  the 
holder  more  than  the  entire  day  after  dishonor ;  as,  for  instance, 
if  the  only  daily  mail  for  the  place  where  the  indorser  lives 
should  close  at  8  P.  M.,  and  the  holder  were  allowed  to  deposit 


ate  notice  as  a  matter  of  law."  We  are  aware  of  no  modern  cases  in  this  country  in 
which  a  different  doctrine  is  held.  There  may  not,  however,  be  so  great  a  conflict  be- 
tween the  decisions  which  hold  the  question  to  be  one  of  law  and  those  in  which  it 
is  said  to  be  a  matter  of  fact,  or  a  mixed  question  of  law  and  fact,  as  might  at  first 
appear.  The  rule  as  now  generally  laid  down  is,  that  the  courts  have  established  a 
definite  lisuit,  witliin  which  the  plaintiff  nmst  prove  that  he  sent  the  notice,  or  else  must 
show  such  circumstances  as  will  excuse  him  from  a  strict  compliance  with  the  rule; 
and  this  last  fact  must  necessarily  open  the  whole  question,  as  it  may  depend  on  such  a 
variety  and  complication  of  facts  that  the  intervention  of  a  jury  is  essential  to  decide 
the  matter.  In  Stott  v.  Alexander,  1  Wash.  Va.  3.31,  a  bill  was  drawn  in  I'hiladelphia 
on  London,  and  protested  there  in  September.  Notice  was  received  in  the  latter  part 
of  the  following  June.  The  court  thought  the  notice  was  reasonable.  In  I'inder  v. 
Nathan,  4  Mart.  La.  346,  the  question  was  held  to  be  one  of  fact;  but  in  Chandler  v. 
Sterling,  9  id.  .'J65,  it  was  held  to  be  a  mixed  question  of  law  and  fact.  So  Spencer  v. 
Stirling,  10  id.  88,  where  there  was  a  delay  of  one  month,  and  a  verdict  for  the  plain- 
tiff was  sn.stained.  In  Haddock  v.  Murray,  1  N.  II.  140,  it  was  said  to  be  a  question 
of  fact ;  but  wiiere  the  facts  were  ascertained,  the  court  should  pass  upon  it.  In  Bryden 
r.  Bryden,  11  Joims.  187,  it  was  said  to  be  a  mixed  question  of  law  and  tact;  but 
where  the  facts  were  clear,  it  was  a  question  for  the  court.  Three  days'  delay  was  held 
too  long.  In  Philips  v.  M'Curdy,  1  Harris  &  J.  187,  it  is  said  that  notice  must  be  given 
"  in  due  and  convenient  time,  of  which  the  court  are  to  judge."  In  Scarborough  v.  Har- 
ris, 1  Bay,  177,  it  is  said  that  "the  holder  of  a  bill  must  give  reasonable  notice  to  the 
indorser,  that  is,  by  first  post  or  convenient  opportunity,  which  is  partly  a  matter  of 
fact  for  jury,  what  is  reasonable  or  not."  In  Stanton  v.  Blossom,  14  Mass.  IIG,  it  is 
said  that  notice  must  be  given  within  a  reasonable  time.  So  in  Aldis  i;.  Johnson, 
1  Vt.  130,  140;  but  the  court  decided  the  question. 

{!))  Jackson  v.  Richards,  2  Caines,  343,  where  notice  was  given  the  la5t  day  of  grace, 
and  the  dcinand  made  the  succeeding  day. 

(c)  3  Kiiit,  Com.  106,  note  e.  In  a  subsequent  part  of  this  note,  added  in  one 
of  the  inoH!  recent  editions,  the  learned  editor  appears  to  have  a(lupti'<l  the  stricter 
view,  and,  as  is  conceived,  fallen  into  the  opposite  error.  See  also  the  remarks  of  J(hn 
ion,  J.,  Johnson  v.  Ilarth,  1  Bailey,  482,  484. 


CH.  XII.]  AT    WHAT    TIME   NOTICE   SHOULD    BE   GIVEN.  509 

the  notice  in  the  office  at  9  P.  M.,  the  effect  of  this  wouhl  lie  to 
allow  the  holder  two  days ;  for  the  notice  might  as  well  be  per- 
mitted to  remain  in  his  desk  as  to  lie  in  the  post-office  till  the 
mail  for  the  next  day  should  close.  This  seems  to  be  a  greater 
relaxation  than  is  consistent  with  all  the  leading  authorities. 

Another  suggestion  has  been  made  by  a  distinguished  judge 
and  writer, (c/)  which  is,  that  the  holder  should  be  required  to  send 
the  notice  by  the  first  mail  which  starts  after  twenty-four  hours 
from  the  time  of  actual  dishonor.  But  the  great  objection  to  this 
view  is,  that  it  would  render  an  inquiry  into  the  exact  time  of 
presentment  necessary,  which  would  clearly  be  inconvenient  and 
uncertain. 

It  has  also  been  said  that  notice  should  be  sent  by  the  next 
mail  after  dishonor,((?)  or  by  the  next  practicable  mail.(/)  This 
is  incorrect,  because  it  might  render  it  necessary  to  mail  the  no 
tice  on  the  very  day  of  dishonor,  and  the  cases  are  clear  and  de- 
cisive on  the  point  that  notice  need  in  no  case  be  sent  on  thai 
day.(^^)  Thus,  in  one  case,  where  notice  was  received  at  9  A.  M., 
and  the  mail  left  at  6  P.  M.,  it  was  held  that  notice  need  not  be 
forwarded  that  day,  although  the  next  subsequent  mail  did  not 
leave  until  the  second  day  thereafter.  (A) 


{d)  Story  on  Bills,  §  290,  note.  Judge  Story  simply  puts  this  by  way  of  sugges- 
tion.    In  §  288  the  rule  is  stated  with  accuracy.     See  also  Prom.  Notes,  ^  324. 

(e)  Tindal  v.  Brown,  IT.  R.  167  ;  Darbishire  v.  Parker,  6  East,  3,  9;  Hubbard  v. 
Troy,  2  Ired.  134  ;  Denny  v.  Palmer,  .5  id.  610;  Whittlesey  v.  Dean,  2  Aikens,  263; 
Curry  v.  Bank  of  Mobile,  8  Port.  Ala.  360 ;  Hickman  v.  Ryan,  5  Littell,  24. 

(/)  Mitchell  V.  Degrand,  1  Mason,  176  ;  U.  S.  v.  Barker,  4  Wash.  C.  0.  464  ;  Mead 
V.  Engs,  5  Cowen,  303  ;  Dodge  v.  Bank  of  Ky.,  2  A.  K.  Marsh.  610,  616 

(g)  Hartford  Bank  v.  Stedman,  3  Conn  489;  Whitwell  y.  Johnson,  17  Mass.  449 ; 
Housatonic  Bank  v.  Laflin,  5  Cash.  .546  ;  Howard  v.  Ives,  1  Hill,  263  ;  Bank  of  U.  S. 
V.  Merle,  2  Rob.  La.  117;  Downs  v.  Planters'  Bank,  1  Smedes  &  M  261  ;  Deminds  v. 
Kirkman,  id.  644.  The  rule  is  the  same  where  the  parties  live  in  the  same  place. 
Pearson  v.  Duckham,  3  Litt.  385  ;  Noble  i'.  Bank  of  Kentucky,  3  A.  K.  Marsh.  262. 
The  dictum  of  Parker,  C.  J.,  in  Woodbridge  v.  Brigham,  12  Mass.  403,  404,  to  the  con- 
trary, is  overruled  by  Grand  Bank  v.  Blanchard,  23  Pick.  305,  where  an  indorscr  who 
was  notified  on  the  day  after  dishonor  was  held,  although  it  had  been  the  usual  course 
of  the  bank  which  sent  the  notice  to  notify  the  parties  living  in  the  same  town  on  the 
last  dav  of  grace.  There  is  also  a  dictum  of  Hatchins,  J.,  in  Nash  v.  Harrington,  2 
Aikens,  9,  to  the  same  effect.     See  Whittlesey  i\  Dean,  id.  263. 

(h)  Geill  V.  Jeremy,  Moody  &  M.  61.  It  will  be  seen  subsequently,  that  in  general 
any  party  who  receives  a  notice  is  entitled  to  as  much  time  in  which  to  forward  it  to 
the  itUorser  whom  he  wishes  to  charge,  as  the  holder  at  the  time  of  dishonor.  In  Bank 
of  Alexandria  v.  Swann,  9  Pet.  33,  demand  was  made  at  3  P.  M.  The  mail  closed 
at  half  past  8  P.  M.  Objection  that  the  notice  should  have  been  forwarded  thereby  was 
43* 


510  NOTES   AND   BILLS.  [CH.  XH. 

It  is  said  in  some  cases  that  the  notice  should  be  sent  by  the 
first  mail  of  the  next  day  after  dishonor ;  (i)  but  the  authorities 
in  which  it  was  necessary  to  decide  the  point  hold  that  it  may  be 
sent  by  any  mail  of  that  day.  Thus,  where  one  mail  leaves  in 
the  morning  and  another  in  the  evening,  the  holder  has  tlie  right 
to  elect  which  one  he  will  use  by  which  to  transmit  the  notice. (y) 

In  many  cases  it  is  said  that  notice  should  be  sent  by  the  mail 
of  the  next  day  after  dishonor ;  [k)  but  most  of  these  were  cases 

overruled.  So  Mead  v.  Engs,  5  Cowen,  303,  where  the  notice  was  received  in  the 
morning,  and  the  mail  left  at  1  P.  M. ;  Howard  v.  Ives,  1  Hill,  263,  where  the  mail 
closed  at  5  P.  M.     See  also  the  cases  cited  infra,  p.  511,  note  /,  p.  512,  note  o. 

((')  Dickius  V.  Beal,  10  Pet.  572,  581  ;  Bank  of  U.  S.  v.  Merle,  2  Rob.  La.  117; 
Townsley  v.  Springer,  1  La.  122.     Sec  Brown  v.  Turner,  11  Ala.  752. 

(_;■)  Goodman  v.  Norton,  17  Maine,  381 ;  Howard  v.  Ives,  1  Hill,  263  ;  Whitwell  v. 
Johnson,  17  Mass.  449.  See  Housatonic  Bank  v.  Laflin,  5  Cush.  546,  where  it  is  said 
that  this  is  true,  however  late  the  last  mail  might  start. 

(h)  In  Lenox  v.  Roberts,  2  Wheat.  373,  Marshall,  C.  J.  said  :  "It  is  the  opinion  of 
the  court  that  notice  of  the  default  of  the  maker  sliould  be  put  into  tiie  post-office  early 
enough  to  be  sent  by  the  mail  of  the  succeeding  day."  So  also  U.  S.  v.  Barker,  4  Wash. 
C.  C.  464,  12  Wheat.  559,  where  the  notice  was  received  on  one  day,  and  not  forwarded 
by  the  only  mail  of  the  next  day,  which  left  at  half  past  10  A.  M.  The  court  held  tliat 
the  indorser  was  discharged.  In  Fullerton  r.  Bank  of  U.  S.,  1  Pet.  604,  the  judge 
charged  the  jury  that  "  notice  should  have  been  given  to  the  indorser  through  the 
medium  of  tiie  post-office,  the  day  after  tlie  last  day  of  grace,  in  season  to  go  by  the 
sucecding  mail."  Held  correct,  as  the  word  "  succeeding  "  must  be  taken  to  apply 
to  the  words  "  last  day  of  grace,"  and  not  "  the  day  after  the  last  day."  Johnson,  J. 
said  :  "  With  this  signification,  it  was  rather  more  favorable  than  need  be  given,  since 
the  mail  of  the  next  day  may  have  gone  out  before  early  business  hours,  or  no  mail 
may  have  gone  out  for  several  days."  In  tlic  following  cases  it  is  laid  down  that  notice 
should  be  sent  by  the  next  daj^'s  mail.  Williams  v.  Smith,  2  B.  &  Aid.  496  ;  Wright 
V.  Sliawcross,  id.  501,  note  ;  Housatonic  Bank  v.  Laflin,  5  Cush.  546  ;  Talbot  v.  Clark, 
8  Pick.  51  ;  Whitwell  v.  Johnson,  17  Mass.  449  ;  Brown  i;  Ferguson,  4  Leigh,  37  ; 
Manchester  Bank  r.  White,  10  Foster,  456  ;  Manchester  Bank  v.  Fellows,  8  id.  302. 
In  Chick  v.  Pillsbury,  24  Maine,  458,  Sheplcy,  J.,  in  a  dissenting  opinion,  maintained 
that  tlie  notice  must  be  sent,  at  all  events,  l)y  the  mail  of  tiie  day  succeeding  di.^honor, 
however  early  it  may  start.  The  cases  of  Goodman  v.  Norton,  17  Maine,  381,  Beck- 
with  V.  Smith,  22  id.  125,  are  cited  as  sustaining  ids  oi)inion,  but  they  do  not  seem  to  bo 
decisions  on  the  point ;  or  if  they  are  to  i)e  so  considered,  they  arc  overruled  by  Chick 
V.  Pillsbury,  24  Maine,  458.  The  objections  whicli  Mr.  Justice  Sliepley  makes  to  the 
opinion  of  the  majority  of  tiic  court  are,  that  that  doctrine  will  introduce  too  great 
uncertainty  into  the  law,  that  this  view  maintained  by  him  would  be  certain  and  uni- 
form. There  is  no  doubt  that  it  would.  But  then  the  more  lax  rule,  as  stated  by 
Chancellor  Kent,  supra,  p.  508,  note  c,  would  certainly  bo  as  "  uniform,  certain,  and 
easy  of  apprehension."  Thcie  is  an  objection  to  that  rule,  as  already  stated,  it  is 
true.  But  tlicre  is  a  like  objection  to  the  more  strict  one,  which  wo  state  in  our  t».xt 
And  if  it  should  be  necessary  to  choose  between  one  or  the  other,  wo  apprehend  that  it 
would  be  more  reasonable  to  adopt  the  former.  Bu^  modern  decisions,  as  we  shall  sec, 
take  a  middle  ground  between  them. 


CH.  XII.]  AT   WHAT   TIME   NOTICE    SHOULD   BE   GIVEN.  511 

•which  hold  that  a  notice  so  sent  is  sufficient,  which  is  undoubt- 
edly true,  else  the  court  only  intended  to  state  the  general  rule 
without  tiie  qualifications.  It  is  obvious  that,  if  there  is  no 
mail  the  next  day,  the  notice  cannot  be  sent  by  such  a  mail ; 
and  if  by  this  rule  is  meant  tliat  notice  must  be  sent  at  any 
rate  by  a  mail  of  that  day,  we  should  say  that  it  is  incorrect. 
So,  if  the  only  mail  which  leaves  on  the  day  after  dishonor 
should  close  at  2  A.  M.,  and  leave  at  half  past  three,  our 
opinion  is  that  notice  need  not  be  sent  by  tliat  mail,  but  may 
be  forwarded  by  that  of  the  next  day.  The  most  recent  au- 
thorities in  which  it  has  been  necessary  to  pass  directly  upon 
this  point  have  so  decided,  and  the  rule,  and,  as  we  think,  the 
correct  one,  is  affirmed  to  be,  that  the  holder  is  bound  to  for- 
ward the  notice  as  early  as  by  a  mail  of  the  day  after  dishonor 
which  does  not  start  at  an  unreasonably  early  hour ;  (/)  and  if 
there  is  no  mail  which  leaves  on  that  day  after  a  reasonably  early 
hour,  the  notice  is  to  be  forwarded  by  the  next  mail  whicli  starts 


(t)  See  the  remarks  of  Johnson,  J.,  cited  supra,  p.  510,  note  /■:.  In  Carter  v.  Burley,  9 
N.  H.  558,  570,  ParIcer,C.  J.,  after  an  able  review  of  the  authorities,  and  layinj^^down  the 
general  rule  that  notice  must  be  sent  as  early  as  by  the  mail  of  the  day  following  dis- 
honor, said :  ''  This  rule,  however,  must  be  qualified  so  far  that,  if  the  party  receiving 
the  notice  cannot,  by  the  exercise  of  reasonable  diligence,  forward  notice  to  a  prior 
party  by  the  mail  of  the  day  following,  it  will  be  sufficient  if  sent  by  the  next.  In  this 
country,  where  many  of  the  mails  go  out  at  an  early  hour  of  the  morning,  and  are 
sometimes  closed  at  an  early  hour  of  the  evening  before,  it  would  be  impracticable  in 
some  instances,  and  nearly  so  in  many  more,  to  prepare  and  forward  a  notice  by  the 
mail  of  the  next  day,  where  notice  was  received  late  in  the  afternoon,  or  in  the  even- 
ing." In  Sussex  Bank  v.  Baldwin,  2  Harrison,  487,  the  judge  charged  the  jury  that 
it  was  sufficient  if  the  holder  put  the  notice  in  the  post-office  on  the  day  after  he  re- 
ceived it.  Held  incorrect,  and  the  rule  was  declared  to  be,  that  '•'  the  notice  must  be 
sent  on  the  day  next  after  the  third  day  of  grace,  unless  the  mail  of  that  day  go  out  at 
so  earh  an  hour  as  to  render  it  impracticable  by  the  exercise  of  a  reasonable  diligence." 
So  Chick  V.  Pillsbury,  24  Maine,  458,  Sheplei/,  J.  dissenting ;  Mitchell  v.  Cross,  2  R.  I. 
437  ;  Stephenson  v.  Dickson,  24  Penn.  State,  148;  Burgess  v.  Vreeland,  4  N.  J.  71  ; 
Lawson  v.  Farmers'  Bank,  1  Ohio  State,  206  ;  West  v.  Brown,  6  id.  542  ;  Downs  v. 
Planters'  Bank,  1  Smedcs  &  M.  261  ;  Deminds  v.  Kirkman,  id.  644;  Hoopes  y.  New- 
man, 2  id.  71  ;  Fortner  r.  Parham,  id.  151  ;  Wemple  v.  Dangcrfield,  id.  445  ;  Davis  v. 
Hanly,  7  Eng.  Ark.  645.  See  Moore  v.  Burr,  14  Ark.  230.  In  Farmers'  Bank  v. 
Duvall,  7  Gill  &  J.  78,  the  bill  was  dishonored  on  April  22d.  The  mail  closed  on  that 
day  at  9  P.  M.,  six  hoars  after  the  dishonor,  and  left  the  next  morning  at  sunrise.  The 
next  subsequent  mail  closed  at  9  P.  M.  on  the  24th,  .ind  left  at  sunrise  on  the  25th. 
Held,  that  a  notice  might  be  forwarded  by  this  mail.  In  Wemple  ?'.  Dangerfield,  2 
Sraedes  &  M.  445,  the  mail  closed  at  9  P.  M.  on  the  day  of  dishonor,  and  left  at  4  A.  M. 
jf  the  next  day.  The  mail  for  the  place  where  the  indorser  lived  left  only  three  times 
a  week.     Held,  that  notice  need  not  be  sent  by  that  mail. 


512  NOTES   AND  BILLS.  [CH.  XIL 

thereafter.  (;;/)  With  respect  to  what  is  not  a  reasonably  early 
hour  no  precise  rule  can  be  laid  down,  except  that,  in  general, 
tlie  limit  must  be  defined  by  business  hours,  which  depend  upon 
the  particular  habits  of  the  mercantile  community  in  each 
place, (w)  and  from  this  fact  arises  much  of  the  discrepancy 
which  we  find  in  the  cases  upon  the  point. (o) 

(m)  Parker,  C.  J.,  supra,  note/.  See  Chick  v.  Pillsbury,  24  Maine,  458;  Lawson 
V.  Farmers'  Bank,  1  Ohio  State,  206;  Downs  v  Planters'  Bank,  1  Smedes  &  M.  261  ; 
Wemple  v.  Dangerfield,  2  id.  445,  supra,  note  / ;  Farmers'  Bank  i*.  Duvall,  7  Gill  &  J. 
78,  supra,  note  /.  In  Davis  v.  Hanly,  7  Eng.  Ark.  645,  where  the  mail  went  out  at  an 
unreasonably  early  hour  of  the  day  after  the  notice  was  received,  the  court  held  it  un- 
necessary to  send  the  notice  by  that  mail,  although  the  next  mail  does  not  appear  to 
have  started  until  a  week  from  that  time. 

(«)  Sussex  Bank  v.  Baldwin,  2  Harrison,  487,  494  ;  Mitchell  v.  Cross,  2  R.  I.  437. 

(o)  In  Hawkes  v.  Salter,  4  Bing.  715,  1  Moore  &  P.  750,  the  bill  was  dishonored  on 
Saturday.  The  mail  left  at  half  past  9  A.  M.  An  opinion  was  expressed,  though  it 
was  not  actually  decided,  that  it  was  sufficient  to  forward  the  notice  by  that  mail  ou 
Tuesday.  It  will  be  seen  that  Sunday  is  not  counted  in  such  cases.  This  case  has 
been  cited  and  considered  as  supporting  the  opinion  of  Chancellor  Kent,  supra,  p.  508, 
note  c ;  but  it  would  not  seem  to  do  so.  The  court  did  not  lay  down  any  rule,  but 
simply  stated  that  the  notice  might  be  sent  by  Tuesday  morning's  mail.  We  should 
prefer  to  consider  this  as  authority  for  saying  that  notice  need  not  have  been  forwarded 
by  the  mail  on  Monday  morning,  because  it  closed  before  business  hours  commenced 
in  the  place  where  the  bill  was  presented.  It  will  be  remarked,  that  the  case  states 
that  the  mail  left  at  half  past  9.  It  might  have  closed  at  an  hour  or  two  earlier,  so  that 
is  would  have  been  necessary  to  deposit  the  notice  in  the  office  as  early  as  8  A.  M.,  in 
order  to  have  it  transmitted  on  that  day.  In  Mitchell  v.  Cross,  2  R.  I.,  3  A.  M.  was 
said  to  be  unreasonably  early.  4  A.  M.  is  too  early.  See  Wemple  v.  Dangerfield,  2 
Smedes  &  M.  445,  supra,  p.  511,  note  /.  When  the  mail  closes  at  5  A.  M.,  and  there 
is  no  mail  until  the  second  day  after,  notice  may  be  sent  by  the  latter.  West  v.  Brown, 
6  Ohio  State,  542.     The  hour  of  sunrise  is  too  early.     Dcminds  v.  Kirkman,  1  Smedes 

6  M.  644.     In  this  case  the  mail  left  at  that  time.     See  also  Farmers'  Bank  v.  Duvall, 

7  Gill  &  J.  78,  supra,  p  511,  note  /.  In  Chick  v.  Pillsbury,  24  Maine,  458,  the  mail 
closed  at  6  A.  M.  and  left  at  7.  Held,  that  notice  need  not  be  sent  by  it.  So  Davis 
V.  Manly,  7  Fing.  Ark.  645,  where  the  next  subsequent  mail  left  a  week  thereafter.  In 
Stepiienson  v.  Dickson,  24  Penn.  State,  148,  an  opinion  was  expressed  that  7  A.  M.  was 
not  an  unreasonably  early  hour.  But  in  Commercial  Bank  v.  King,  3  Rob.  La.  243, 
proof  that  notice  was  put  into  the  post-office  at  7  A  M.  was  held  sufficient,  as  the  pre- 
sumption was  that  it  was  in  time  to  go  by  a  mail  of  that  day.  In  Downs  v.  Planters' 
Bank,  1  Smedes  &,  M.  261,  proof  that  notice  was  dejwsitcd  in  the  post-office  at  9  A.  M., 
without  proof  that  the  mail  closed  earlier,  was  held  insufficient.  So  Beckwith  v.  Smith, 
22  Maine,  125.  In  Lawson  v.  Farmers'  Bank,  1  Ohio  State,  206,  closing  the  mail  at  10 
miimtes  |)ast  9  A.  M.  was  held  not  to  be  unreasonably  early.  And  the  imlorser  was  dis- 
charged, becau.se  notice  was  not  sent  by  it.  The  mail  in  this  case  left  at  10  A.  M.  But 
in  Burgess  v.  Vrecland,  4  N.J.  71,  an  opinion  was  expressed,  that  where  the  mail  closes 
at  half  past  9  A.  M.  it  is  too  early,  and  the  holiler  is  not  bound  to  send  the  notice  by 
it.  In  this  case  it  was  held  that  proof  that  notice  was  put  into  the  jmst-oflice  nt  12  M. 
on  the  day  after  dishonor,  without  evidence  that  there  was  no  mail  which  closed  beforo 
that  hour,  was  insufficieut.     If  the  mail  closes  at  half  past  10  A.  M.,  notice  should  be 


en.  XII.]  AT    WHAT    TIME    NOTICE    SHOULD    BE    GIVEN.  51S 

In  England  it  has  been  held,  that,  if  the  parties  live  in  the  same 
town,  — and  it  is  said  that  this  means,  especially  as  to  London, 
within  the  limits  of  the  penny-post,  —  notice  mnst  be  given  ii. 
such  season  that  it  will  be  received,  in  dne  course  of  delivery, 
on  some  part  of  the  next  day.(7>) 

Each  party  bound  to  give  notice  has  the  same  time,  after  he 
receives  the  notice,  within  which  to  transmit  it  to  the  party  to 
whom  he  wishes  to  \ook,{q)  that  the  holder  has ;  so  that,  in  ac- 
cordance with  what  we  have  already  seen,  if  a  party  receives  the 
notice  from  a  subsequent  party  on  one  day,  he  is  not  bound  to 
transmit  it  to  a  prior  indorser  until  the  next  day,  and  not  then, 
if  the  mail  leaves  before  business  hours.  Thus,  if  a  note  falls 
due  and  is  dishonored  on  Monday,  and  there  are  four  indorsers, 
A,  B,  C,  and  D,  the  holder  may  give  notice  on  Tuesday  to  D. 
D,  receiving  the  notice  on  Tuesday,  is  not  bound  to  mail  it  until 
Wednesday,  and  if  C  receives  it  by  due  course  of  mail  on  Thurs- 
day, he  is  not  l)ound  to  forward  it  to  B  until  Friday,  and  B  miay 
then  notify  A  on  the  day  after  B  receives  it.  If  all  these  notices 
were  thus  regularly  given,  the  owner  would  hold  all  the  in- 
dorsers, although  he  had  notified  but  one,  and  though  the  first 
indorser  had  not  received  the  notice  until  five  days  after  dis- 
honor, and  each  indorser  would  hold  all  who  were  regularly 
notified,  whether  by  him  or  by  other  parties.     But  the  owner 


sent  by  it.  Sec  U.  S.  v.  Barker,  4  Wash.  C.  C.  464.  In  Seventh  Ward  Bank  v.  Han- 
rick,  2  Story,  416,  the  mail  closed  at  half  past  3  P.  M.  Held,  that  the  plaintiff  must 
prove  that  he  deposited  the  notice  in  the  office  in  season  to  go  by  that  mail. 

(p)  In  Smith  v.  Mullett,  2  Camp.  208,  the  plaintiff  received  notice  on  May  20th,  and 
transmitted  it  to  the  defendant  the  next  day,  but  so  late  that  it  was  not  delivered  by  the 
penny-post  until  the  22d.  The  defendant  was  discharged.  Lord  Ellenhorowjh  said, 
that  the  notice  might  as  well  have  remained  in  the  plaintiff's  writing-desk  as  in  the 
post-office  on  the  night  of  the  21st,  and  that  consequently  the  plaintiff  was  guilty  of 
laches.  See  Hilton  v.  Fairclough,  2  Camp.  633.  In  Dobree  v.  Eastwood,  3  Car.  &  P. 
250,  the  notice  was  deposited  between  5  and  6  P.  M.  The  judge  charged  the  jury,  that, 
if  it  was  deposited  in  season  to  be  delivered  by  the  penny-post  of  that  day,  the  indorser 
would  be  held  ;  otherwise,  not.  Verdict  for  the  defendant.  The  burden  is  on  the  plain- 
tiff to  prove  that  he  put  the  notice  in  the  office  in  season  to  be  received  on  that  day. 
Fowler  ».  Hendon,  4  Tyrw.  1002.  The  postmark  is  not  conclusive  as  to  the  time. 
Stocken  v.  Collin,  7  M.  &  W.  515,  where  the  general  rule  is  also  laid  down. 

(q)  Farmer  v.  Rand,  16  Maine,  453;  Carters.  Burley,  9  N.  H.  558;  Manchester 
Bank  v.  Fellows,  8  Foster,  302  ;  Manchester  Bank  v.  White,  10  id.  456  j  Sussex  Bank 
V.  Baldwin,  2  Harrison,  487  ;  Lawson  v.  Fanners'  Bank,  1  Ohio  State,  206  ;  Smith  r. 
Roach,  7  B.  Mon.  17  ;  Triplett  v.  Hunt,  3  Dana,  126  ;  Whitman  v.  Farmers'  Bank,  8 
Port.  Ala.  258. 

V»L.  I.— 2  H  • 


514  NOTES   AND    BILLS.  [CH.  XH 

would  hold  none  but  those  regularly  notified,  and  thus  he  runs 
the  risk  of  losing  his  claim  against  some  of  the  parties  by  the 
negligence  or  indifference  of  others. 

He  may  choose  to  make  this  sure,  and  this  he  may  do  by  noti- 
fying all  the  parties  himself.  But  he  has  only  his  own  day  within 
which  to  do  this,  and  not  the  day  of  the  others  ;  and  he  must 
therefore  issue  all  his  notices  on  tlie  day  after  that  of  dishonor, 
unless  tliere  is  no  n^ail  that  day,  or  none  that  leaves  or  closes 
after  business  hours. 

So  it  is  with  the  other  parties  ;  each  lias  his  own  time,  and 
only  that.(r)  Thus,  in  the  case  above  supposed,  A  is  held,  pro- 
vided all  the  intermediate  notices  were  duly  given.  But  if  lie 
was  notified  personally  only  on  Thursday  by  D,  who  received  the 
notice  on  Tuesday,  and  should  have  sent  it  on  Wednesday,  A  is 
not  liable  to  any  one.  D  is  liable  to  the  holder  ;  but  if  the  latter 
sues  A  on  the  ground  that  he  was  notified  two  days  sooner  than 
it  was  necessary  that  he  should  be,  and  earlier  than  he  would 
have  been  had  D  notified  C,  and  C  B,  and  B  A,  a  sufficient 
answer  is,  that  this  delay  was  the  right  of  the  others,  and  not  the 
right  of  D. 

If  one  party  gives  notice  earlier  than  he  is  obliged  to,  this  will 
not  lengthen  the  time  of  any  other  party ;  or,  in  other  words,  the 
over  diligence  of  one  party  is  no  excuse  for  the  under  diligence 
of  another. (5)  An  agent,  to  whom  a  note  or  bill  is  indorsed  for 
collection,  has  the  same  time  within  which  to  notify  his  principal, 
and  the  principal  the  prior  parties,  as  if  the  agent  were  the  real 
owner,  (i) 


(r)  Rowe  v.  Tipper,  13  C.  B.  249,  where  the  third  indorser  notified  the  second  oa 
the  next  business  day  after  dishonor,  and  the  first  on  the  day  subsequent  to  that.  The 
second  indorser  gave  no  notice.  Held  that  the  first  was  not  liable  to  the  third.  See 
Dobrce  v.  Eastwood,  3  Car.  &  P.  2.50;  Simpson  v.  Turncy,  5  Humph.  419. 

(s)  Turner  v.  Leech,  4  B.  &  Aid.  451  ;  Smith  v.  Mullctt,  2  Camp.  208  ;  Carter  t>. 
Burley,  9  N.  H.  558 ;  Manchester  Bank  v.  Fellows,  8  Foster,  302  ;  Farmer  v.  Rand, 
16  Maine,  453  ;  Brown  v.  Ferguson,  4  Leigh,  37  ;  Etting  v.  Schuylkill  Bank,  2  Penn. 
State,  35.5. 

(t)  Bray  v.  Iladwen,  5  M.  &  S.  68  ;  Daly  v.  Slater,  4  Car.  &  P.  200  ;  Robson  v. 
Bennett,  2  Taunt.  388  ;  Langdale  v.  Trimmer,  15  East,  291  ;  Firth  v.  Thrush,  8  B. 
&  C.  387;  Scott  v.  Liflford,  9  East,  347,  1  Camp.  246  ;  Hayncs  v.  Birks,  2  15os.  &  P. 
599;  Ogden  v.  Dobbin,  2  Hall,  112  ;  Bank  of  the  United  States  i;.  Davis,  2  Hill,  451 ; 
Crocker  v.  Getchcll,  23  Maine,  392  ;  Su.ssex  Bank  v.  Baldwin,  2  Harrison,  487  ;  Fos- 
ter V.  McDonald,  3  Ala.  34  ;  Gindrat  ».  Mechanics'  Bank  of  Augusta,  7  id.  324  ;  Hill 
r.  Planters'  Bank,  3  Humph.  670  ;  Grand  Gulf  R.  &  B.  Co.  v.  Barnes,  1^  Rcb.  La. 


en.  XII.]  AT   WHAT    TIME   NOTICE    SHOULD   BE    GIVEN.  516 

No  one  is  required  to  give  notice  on  Sunday,(w)  or  any  well- 
established  holiday. (v)  If  such  day  intervenes,  it  is  not  counted, 
but  adds  one  more  day  of  allowalile  delay.  Thus,  if  a  notice  is 
received  on  Saturday,  it  need  not  be  forwarded  until  by  some 
mail  on  Monday,  leaving  or  closing  after  business  hours  com- 
mence, or  if  there  be  no  mail,  by  the  next  one  ;  and  this  is  so 
even  if  there  is  a  Sunday  mail.(?*y) 

It  has  been  held,  that,  although  notice  is  received  on  Sunday, 
the  party  receiving  is  not  obliged  to  transmit  it  before  Tuesday, 
because  he  is  not  bound  to  open  the  letter  on  Sunday,  and  it  is 
to  be  considered  as  received  on  Monday. (.^)  It  has  also  been 
held  that  a  party  may  if  he  pleases  forward  a  notice  on  a  lioli- 
day.(y/) 

Although  a  notice  need  not  be  forwarded  before  the  day  after 
dishonor,  or  its  reception,  still  there  is  no  reason  why  it  may  not 
be  transmitted  on  that  very  day,  after  due  presentment  and 
demand. (c)      In   some   States,  as  we  have  seen,  suit  may  be 


127  ;  Colt  i;.  Noble,  5  Mass.  167  ;  Church  v.  Barlow,  9  Pick.  547  ;  Bank  of  the  United 
States  V.  Goddard,  5  Mason,  366.  See  Talbot  v.  Clark,  8  Pick.  51.  The  same  rule 
applies  to  the  several  branch  banks  of  the  same  establishment.  Clode  v.  Bayley,  12 
M.  &  W.  51. 

(«)  Haynes  v.  Bii-ks,  3  Bos.  &  P.  559 ;  Jameson  v.  Swinton,  2  Camp.  373,  2  Taunt 
224 ;  Poole  v.  Dicas,  1  Bing.  N.  C  649 ;  Jackson  v.  Richards,  2  Caines,  343 ;  "Wil- 
liams V.  Matthews,  3  Cowen,  252  ;  Eagle  Bank  v.  Chapin,  3  Pick.  180  ;  Seventh  "Ward 
Bank  ;;.  Hanrick,  2  Story,  416;  Agnew  o.  Bank  of  Gettysburg,  2  Harris  &  G.  478 ; 
Burckmyer  v.  "Whiteford,  6  Gill,  1.  See  Triplett  v.  Hunt,  3  Dana,  126;  Etting  v. 
Schuylkill  Bank,  2  Penn.  State,  355  ;  Jones  v.  Wardell,  6  "Watts  &  S.  399. 

(v)  Cuyler  v.  Stevens,  4  Wend.  566,  where  the  third  day  of  grace  was  July  4th.  In 
Lindo  V.  Unsworth,  2  Camp.  602,  the  bill  was  dishonored  on  Saturday.  Monday  was 
a  Jewish  festival.  The  plaintiff,  a  Jew,  gave  notice  to  the  indorser  on  Tuesday,  and 
the  latter  was  charged.     See  also  Martin  v.  Ingersoll,  8  Pick.  1. 

(iv)  Howard  v.  Ives,  1  Hill,  263,  where  the  mail  closed  Saturday  at  3  P.  M.  There 
were  two  mails  on  Sunday  and  two  on  Monday,  one  of  which  closed  early  in  the 
morning  and  the  other  in  the  afternoon.  Notice  sent  by  the  last  mail  was  held  suf- 
ficient. 

(x)  Wright  V.  Shawcross,  2  B.  «&  Aid.  501,  note.  See  Bray  v.  Had  wen,  5  Maule  & 
S.  68  ;  Deblieux  v.  Bullard,  1  Hob.  La.  66. 

(y)  Debilicux  v.  Bullard,  1  Rob.  La.  66,  where  it  was  given  on  the  4th  of  July ;  Mar- 
tin, J.  said  it  might  be  given  on  Sunday. 

(z)  Bussard  v.  Levering,  6  Wheat.  102,  where  the  notice  was  given  on  Saturday, 
Sunday  being  the  third  day  of  grace ;  Lindenberger  v.  Beall,  id.  104  ;  Corp  v.  M'Comb, 
1  Johns.  Cas.  328;  Thorpe  v.  Peck,  28  Vt.  127,  where  the  note  was  payable  at  a  bank, 
dnd  notice  was  given  before  the  close  of  banking  hours ;  Smith  v.  Little,  10  N.  H.  526  ; 
Manchester  Bank  v.  Fellows,  8  Foster,  302  ;  Coleman  v.  Carpenter,  9  Penn.  State,  178  ; 
Lawson  v.  Farmers'  Bank,  1  Ohio  State,  206;  Haslett  v.  Ehrick,  1  Nott  &  McC.  116, 
where  the  maker  was  notified  bv  the  bank  where  the  note  was,  that  it  was  in  'jhcif 


516  NOTES   AND   BILLS.  [CH.  XEL 

comnienced  on  the  day  of  dishonor ;  but  in  such  case  it  is  neces- 
sary to  send  the  notice  to,  or  to  notify  the  party  to  be  charged, 
before  the  commencement  of  the  action. (a)  But  there  are  de- 
cisions to  the  effect  that  no  suit  can  be  commenced  on  that  day, 
and  some  that  it  cannot  be  brought  before  the  time  when  it  may 
be  supposed  that,  by  the  regular  course  of  the  mail,  the  party  to 
be  charged  has  received  the  notice. (Z>) 

If  notice  is  given  too  soon,  it  is  of  no  avail.  Li  Massachusetts 
it  is  held,  that  where  a  note  is  neither  payable  at  a  bank  nor  put 
in  a  bank  for  collection,  notice  to  the  indorser  immediately  after 
the  close  of  bank  hours,  no  demand  having  been  made  on  the 
maker,  is  invalid. (c) 

The  burden  of  proving  due  notice  is  upon  the  plaintiff,(c?) 
whose  duty  it  is  to  give  it  in  a  way  capable  of  proof.  It  should 
also  be  proved  distinctly.  Thus,  if  the  witness  says  the  notice 
was  sent  in  two  or  three  days,  and  two  are  enough,  but  three 
not,  and  there  is  nothing  to  define  this  testimony,  it  will  not  be 
sufficient  evidence  to  find  a  verdict  for  the  plaintiff,  (e) 

It  has  been  held  to  be  sufficient  for  any  indorser  to  show  that 
the  indorser  whom  he  wishes  to  hold  received  the  notice  as  soon 
as  he  would  have  received  it  had  all  the  subsequent  indorsers 
used  the  period  of  time  to  which  they  are  severally  entitled,  and 

hands,  and  requesting  him  to  "please  have  it  settled  by  9  o'clock  to-monow,  and 
prevent  its  being  returned  for  protest."  After  business  hours  the  notice  was  sent  to 
the  indorser,  the  note  being  still  unpaid,  and  the  indorser  was  held.  Curry  v.  Bank  of 
Mobile,  8  Port.  Ala.  360 ;  Crenshaw  ?;.  M'Kiernan,  Minor,  295  ;  McClanc  v.  Fitch,  4  B. 
Mon.  599.  Sec  Stivers  v.  Prentice,  .3  id.  461  ;  Burbridge  v.  Manners,  3  Camp.  193  ;  Ex 
parte  Moline,  19  Ves.  216,  1  Rose,  303;  Hartley  v.  Case,  1  Car.  &  P.  555,  4  B.  &  C. 
339 ;  Lord  Ak-anlci/,  C.  J.,  Haynes  v.  Birks,  3  Bos.  &  P.  599,  602 ;  Bnijley,  J.,  Cocks 
V.  Masterman,  9  B.  &  C.  902,  909.  In  Leftley  v.  Mills,  4  T.  R.  170,  Lord  Keiii/on  ex- 
pressed an  opinion  that  the  maker  or  .ncceptor  could  not  be  considered  in  default 
until  the  next  day,  leaving  the  whole  of  the  last  day  to  pay  in  ;  but  Duller,  J.  expressed 
an  opinion  to  the  contrary. 

(o)  Siipt-a,  p.  411. 

(i)  Supra,  p.  411. 

(c)  Pierce  v.  Gate,  12  Cush.  190.     See  also  Pinkham  v.  Macy,  9  Met.  174. 

(d)  In  Halscy  v.  Salmon,  Penning.  667,  the  demand  was  set  out  in  the  declaration, 
and  the,  fact  that  the  defendant  had  notice  thereof,  but  did  not  state  any  time.  Held 
iiisuflicient.  In  Sussex  Bank  v.  Baldwin,  2  Harrison,  487,  the  plaintiff's  witness  testified 
that  he  mailed  the  notice,  but  could  not  tell  when.  Held  insufficient  evidence  to  provo 
notice.  Su  Warren  v.  Oilman,  15  Maine,  70;  Lockwood  v.  Crawford,  18  Conn.  361, 
where  the  only  evidence  was  the  fact  that  the  holder,  being  an  inmate  of  the  defendant's 
family,  informed  him  of  the  dishonor. 

(e)  Lawson  r.  Shiffncr,  1  Stark.  314. 


CH.  Xir.]  AT   WHAT   TIME   NOTICE   SHOULD    BE   GIVEN.  517 

taking  into  consideration  the  time  necessarily  occupied  by  the 
usual  course  of  the  mail  between  their  respective  places  of  busi- 
ness or  of  residence, (/)  and  that  it  will  then  be  open  to  tlio 
defendant   to   prove   that   any  of  these   parties   delayed    trans- 


{/)  In  Marsh  v.  Maxwell,  2  Camp.  210,  note,  "Lord  EUenborough  ruled,  that,  upon 
the  dishonor  of  a  hill,  it  is  enough  that  the  drawer  or  indorser  receives  notice  in  as  many 
days  as  there  are  subsequent  indorsers,  unless  it  is  shown  that  each  indorser  gave  notice 
within  a  day  after  receiving  it ;  as  if  any  one  has  been  beyond  the  day,  the  drawer  and 
prior  indorsers  are  discharged."  In  Ettiug  v.  Schuylkill  Bank,  2  Penn.  Slate,  355,  the 
third  indorser  sued  the  second.  The  first  three  indorsers  lived  in  Philadelphia,  the 
fourth  in  New  York,  the  fifth  in  Newark,  N.  J.  The  place  of  payment  was  Elizabeth- 
town.  The  note  was  due  Oct.  4th.  Oct.  6th  was  Sunday.  The  defendant  received 
notice  Oct.  8th.  This  is  all  the  evidence  reported.  The  court  said  that  the  notice  was 
in  sufficient  time,  though  the  case  turned  upon  another  point.  Gibson,  C.  J  said  : 
"  The  general  rule  is,  that  when  notice  is  given  by  the  holder  directly,  it  is  soon 
enough  if  it  reach  the  particular  indorser  as  soon  as  it  would  have  readied  him  circui- 
tously  through  the  subsequent  indorsers,  each  of  whom  are  entitled  to  an  entire  day,  if 
he  cliosc  to  insist  on  it,  to  hand  it  on  ;  the  only  limitation  to  which  is  stated  in  Marsh 

V.  Maxwell,  2  Camp.  210,  note,  by  Lord  EUenborough In  other  words,  that  there 

shall  not  be  a  longer  link  in  the  chain  than  the  space  of  a  single  day ;  and  that  the  liolder 
shall  not  afi^ect  the  indorser  with  notice  after  he  has  been  discharged  from  liability  to  tiie 
subsequent  indorsers.  In  this  case  there  was  no  evidence  of  circuitous  notice,  and  a 
day  was  properly  allowed  for  each  intervening  party."  In  Jones  v.  Wardell,  6  Watts 
&  S.  .399,  the  drawer  lived  in  Philadelphia,  and  the  payee  and  first  indorser  in  New 
York.  The  second  indorser  was  the  Bank  of  Syracuse,  by  which  the  bill  was  indorsed 
to  the  Bank  of  Rochester,  which  was  the  place  of  payment.  The  bill  was  protested 
December  2Sth.  On  January  3d  the  notice  was  mailed  to  Philadelphia,  where  it  arrived 
on  January  4th.  Sunday  intervened.  This  is  all  the  evidence  reported  on  this  point, 
and  the  court  held  that  the  evidence  was  sufficient  to  sustain  a  verdict  in  favor  of  the 
first  indorser  against  the  drawer.  Rogers,  J.  said  :  "  By  whom,  or  in  what  manner,  or 
to  whom  it  was  transmitted  to  the  city  of  New  York,  or  by  whom  it  was  mailed  to  Phil- 
adelphia, does  not  appear.  The  sup])Osition  is,  that  the  business  was  transacted  in  the 
usual  course  ;  thac  is  to  say,  that  the  notice  of  protest  was  sent  to  the  SjTacusc  Bank, 
by  them  to  the  payee  in  New  York,  by  whom  it  was  sent  by  mail  to  the  drawer,  who 
resides  in  Philadelphia.  The  Bank  of  Rochester,  to  whom  it  was  sent  for  collection, 
in  the  absence  of  all  information  to  the  contrary,  had  a  right  to  suppose  that  the  parlies 
to  the  bill  lived  in  New  York ;  it  would,  therefore,  be  unreasonable  to  require  that  the 
notice  should  be  sent  direct  to  the  drawer,  and  this  explains  the  reason  of  the  direction 
which  the  notice  took.  As  a  matter  of  law,  therefore,  we  incline  to  the  opinion  that 
this  was  a  reasonable  notice  of  the  dishonor  of  the  bill ;  for,  allowing  one  day  to  each 
of  the  parties  to  the  bill,  and  one  day  for  Sunday,  which  was  an  intervening  day, 
greater  diligence  could  not  reasonably  be  required,  when  it  is  remembered  that  Roch- 
ester is  four  hundred  miles  from  New  York,  and  consequently  five  hundred  from 
Philadelphia,  where  the  drawer  resided."  One  difficulty  in  the  above  cases  is  the 
want  of  evidence  as  to  the  course  of  the  mails  and  the  time  necessarily  occupied  in 
tJicir  transmission  from  one  place  to  another;  or,  in  other  words,  it  may  perhaps  be 
objected,  that  the  court  cannot  judicially  take  cognizance  of  the  time  thus  occupied, 
without  any  proof.  Thus,  in  Carter  v.  Burley,  9  N.  H.  558,  a  suit  by  the  second  in- 
dorser against  the  first,  the  third  indorser  lived  in  New  York,  the  second  in  Boston,  and 

VOL.  I.  44 


518  NOTES   AND   BILLS.  [CH.  XH. 

mitting  the  notice  beyond  the  time  the  law  allows,  which  will, 
in  accordance  with  the  rules  already  laid  down,  be  a  good 
defence.  ("■) 

We  think  tiiat  evidence  should  be  adduced  by  the  plaintiff  to 
show  the  time  occupied  by  the  mail  between  the  places,  as  it  is 
difficult  to  see  how  the  court  can  take  judicial  cognizance  of  it. 
Perhaps  the  proposition  should  be  further  qualified  by  requiring 
the  plaintiff  to  prove  that  he  transmitted  the  notice  to  his  prior 
indorser,  or  to  the  one  whom  he  wished  to  hold,  within  the 
requisite  time,  thus  clearing  himself  at  least  of  all  imputation  of 
neglect  or  laches. (A) 

This  question  may  also  be  important  with  reference  to  the 
point  whether  notice  was  put  into  the  post-oftice  in  season  to  go 
by  the  mail  of  the  next  day  after  dishonor,  or  the  reception  of 
the  notice.  It  would  seem  to  follow,  from  the  cases  which  we 
have  already  cited, (i)  that  it  will  be  sufficient  to  prove  that  the 
notice  was  in  each  case  deposited  before  business  hours  of  the 
next  day,  because  the  plaintiff  would  by  this  show  that  he  had 
done  all  that  was  required  of  him.(j)  But  if  the  only  evidence 
was,  that  it  was  deposited  after  business  hours  of  that  day  com- 
menced, then  it  would  seem  necessary  at  least  to  show  that  there 
was  no  mail  between  the  commencement  of  business  hours  and 
the  time  of  depositing  the  notice  in  the  office. (A;)     We  have 

the  third  in  New  Hampshire.  The  note  was  protested  in  Philadelphia,  October  4th. 
The  agent  of  the  third  indorser  received  on  October  8th  or  9ili  a  notice  from  liis  prin- 
cipal, dated  October  6th,  and  notified  the  jjlaintitT  the  same  day,  who  also  notified  the 
defendant  on  that  day.  A  verdict  for  the  plaintiff  was  set  aside.  Parker,  C.  J.  said  : 
"  There  is  no  evidence  in  this  case  of  the  course  of  the  mails,  Tior  does  it  appear 
whether  there  was  a  party  at  Philadelphia,  nor  at  what  time  or  in  what  manner  notice 
was  sent  from  that  place,  nor  when  it  was  received  by  Hutchinson  in  New  York. 
The  objection  on  this  part  of  the  case  is  well  taken,  and  for  this  reason  the  case  must 
be  sent  to  a  new  trial."  This  case  does  not  appear  to  conflict  with  the  proposition  in 
the  text.  It  proceeded  mainly  upon  the  ground  that  there  was  no  evidence  as  to  the 
time  occupied  by  the  mails,  a  fact  of  which  the  court  could  not  take  judicial  cogni- 
zance. There  was  also  a  greater  length  of  time  than  could  be  reasonably  accounted 
for  between  the  day  of  protest  and  October  9th. 

(7)   Supra,  p.  000. 

(/i)  Hut  this  does  not  seem  to  have  been  adverted  to  in  the  cases  cited  supra,  p.  516, 
note  /;  although  in  both  cases  it  appeared  that  the  plaintifl^s  transmitted  their  notices 
within  tlicir  time. 

((')  Sufira,  p.  511,  note  /. 

(7)   Sic  (lonimcrcial  RaTik  v.  King,  .*)  Rob.  La.  24.1,  supra,  p.  512,  note  o. 

{k)  Seventh  Ward  Hank  v.  Ilanrick,  2  Story,  416  ;  Hurgcss  v.  Vreeland,  4  N.  J.  71  ; 
Downs  V.   riantcrs'  Bank,   1   Smcdes   &  M.  261  ;   Heckwith  v.  Smith,  22  Main\  125. 


CII.  XII.]  AT    WHAT    TIME   NOTICE   SHOULD   BE   GIVEN.  -^49 

already  seeii,(/)  that,  in  order  to  charge  an  iiidorscr  of  a  iiotG 
payable  on  demand,  presentment  must  be  made  within  a  reason- 
able time.  But  if,  after  such  presentment,  the  note  is  dishon- 
ored, there  is  no  good  reason  why  the  same  rules  as  to  the  time 
within  which  notice  is  to  be  forwarded  to  the  indorser  should  not 
apply,  as  in  the  case  of  other  notes  and  bills,  (m) 

We  have  also  seen  (n)  that  a  note  or  bill  in  which  no  time  of 
payment  is  specified  is  to  be  considered  as  payaV)lc  on  demand. 
We  should  say  in  this  case  also  that  notice  should  be  given 
within  the  same  time  as  in  other  cases. (o) 

It  has  already  been  remarked, (/>)  that  a  note  indorsed  when 
overdue  is  by  the  best  authorities  considered  equivalent  to  a  note 
or  bill  on  demand,  though  some  cases  hold  that  the  same  strict 
rules  are  not  to  be  applied.  It  has  been  said  that  the  holder  has 
a  reasonable  time  after  presentment  within  which  to  notify  the 
indorser,  and  that  this  reasonable  time  may  be  so  long  as  two 
months, ((^)  and  an  opinion  has  been  expressed  that  no  notice  at 
all  is  necessary. (r)     To  maintain  these  views  would  seem  to  be 


For  the  facts  of  these  cases,  see  supra,  p.  512,  note  o.  In  Moore  v.  Burr,  14  Ark.  230, 
the  notary's  deposition  stated  that  the  notice  was  deposited  in  the  post-office  on  the  next 
business  day  after  dishonor,  "  in  time  to  go  by  the  first  mail  thereafter."  Held  insufficient 
to  char<ie  tiie  defendant,  because  tliere  was  no  proof  that  it  was  deposited  in  time  to  go 
by  the  first  convenient  mail,  if  any,  of  that  day. 

(/)   Supra,  p.  263,  et  sec/. 

(m)  In  Field  v.  Nicker.<on,  13  Mass.  131,  part  of  the  instruction  of  the  judge  at  Nisi 
Prius  was,  tliat  "  immediate  notice"  was  requisite.  Held  correct.  No  objection  to  the 
char<|e  on  this  point  appears  to  have  been  laised  by  counsel  or  adverted  to  by  the  court. 
In  Seaver  v.  Lincoln,  21  Pick  267,  S/uiw,  C.  J.  said:  "Demand  being  made  on  the 
makers  at  Fall  River,  notice  to  the  indorser,  at  the  distance  of  twenty-four  miles,  on  the 
succeeding  day,  was  within  due  time."  It  is  laid  down  in  the  following  cases  that  the 
same  rule  applies  as  to  giving  notice.  Lord  v.  Chadbourne,  8  Greenl.  198;  Perry  v. 
Green,  4  Harrison,  61  ;  Lockwood  v.  Crawford,  18  Conn.  361.  In  Nash  v.  Harring- 
ton, 2  Aikens,  9,  Hutchinson,  J.  said,  that  the  notice  ought  to  have  been  given  the  day 
of  the  demand,  the  parties  living  near  each  other,  in  the  same  village. 

{«)   Supra,  p.  381. 

(o)  Brenzer  v.  Wightman,  7  Watts  &  S.  264. 

(p)  Sujmi,  p.  381. 

(q)  Suimje,  C.  J.,  Van  Hoescn  v.  Van  Alstyne,  3  Wend.  75.  This  opinion  is  com- 
mented upon,  and  its  correctness  denied,  by  Church,  C  J.,  in  Lockwood  v.  Crawford, 
18  Conn. 361. 

(r)  GNeall,  J.,  Gray  v.  Bell.  3  Kich.  71,  supra,  p.  381,  note  j.  Sec  Bank  of  Nortli 
America  v.  Barriere,  1  Yeates,  360.  In  the  following  cases  it  is  said  that  the  same 
Btrict  rules  as  to  notice  do  not  apply.  Duncan,  J.,  M'Kinney  v.  Crawford,  8  S.  & 
11.  351  ;  Hall  v.  Smith,  1  Bay,  330 ;  Rugely  v.  Davidson,  4  Const.  R.  33 ;  Brock 
r.  Thompson,  1  Bailey,  322,  where  three  demands  appear  to  have  been  made,  and 


520  NOTES   AND   BILLS.  [CH.  XIL 

introducing  unnecessary  distinctions,  and  in  our  opinion  the 
notice  sliould  be  transmitted  as  soon  in  the  case  of  such  notes 
and.  bills  as  of  any  others. (s) 

If  the  analogy  between  notes  and  bills  on  demand,  and  those 
indorsed  when  overdue,  and  notes  and  bills  payable  at  sight,  is  to 
be  carried  out,  the  same  notice  of  dishonor  would  certainly  be 
requisite,  for  no  distinction  that  we  are  aware  of  has  ever  been 
attempted  to  be  drawn  between  the  time  necessary  in  forwarding 
notice  to  an  indorser  of  a  bill  at  sight,  and  one  in  which  there  is 
a  fixed  time  for  payment. 


notice  given  only  of  the  last.  A  verdict  for  the  plaintiff  was  sustained.  In  Chad- 
wick  V.  Jeffcrs,  1  Rich.  397,  it  is  said  that  the  duty  of  the  holder  as  to  notice,  in  such 
cases,  is  limited  to  the  use  of  such  diligence  that  the  indorser  suffers  no  injury 
through  his  neglect.  Knowledge  by  the  indorser  that  the  maker  was  sued,  at  or  imme- 
diately after  the  commencement  of  the  action,  was  held  sufficient  notice,  in  Benton  v. 
Gibson,  1  Hill,  S.  Car.  56;  Chadwick  v.  Jeffors,  1  Rich.  397  ;  Gray  r.  Boll,  3  id  71, 
2  id.  67.  In  the  last  case  the  writs  were  served  simultaneously,  and  it  was  contended 
that  there  could  be  no  such  knowledge.  But  the  court  held  the  evidence  sufficient  to 
sustain  a  verdict  for  the  plaintiff 

(s)  It  is  said,  in  the  following  cases,  that  the  same  rules  applied.  Berry  v.  Robinson, 
9  Johns.  121  ;  Bishop  v.  Dexter,  2  Conn.  419 ;  Ecfert  v.  Des  Coudrcs,  3  Const.  R.  69 ; 
Course  v.  Shackleford,  2  Nott  &  McC.  283.  In  these  cases  there  had  been  neither  de- 
mand nor  notice.  In  Poole  v.  ToUeson,  1  McCord,  199,  there  had  been  a  demand,  but 
no  notice,  and  the  indorser  was  discharged.  Richardson,  J.  expressly  said,  that  imme- 
diate notice  should  have  been  given,  as  in  any  other  case.  See  his  remarks,  cited 
supra,  p.  382,  note  m.  In  Rice  v.  Wesson,  11  Met.  400,  the  holder  made  a  demand 
some  time  before  he  was  obliged  to,  in  the  opinion  of  tlie  court,  and  two  week* 
afterwards  made  another.  He  gave  notice  of  the  last  demand  only.  The  court  dis- 
charged the  indorser  for  the  neglect  to  notify  him  of  the  first  demand. 


CH.  XIII.]  EXCUSES    FOR   WANT    OF   NOTICE.  521 


CHAPTER    XIII. 

OF    EXCUSES    FOR    WANT    OF    NOTICE. 

It  may  be  doubted  whether  any  branch  of  commercial  law, 
somewhat  narrow  in  itself,  exhibits  so  large  a  number  of  cases, 
and  so  boundless  a  variety  in  their  facts  and  the  conclusions  from 
them,  as  those  which  relate  to  the  subject  of  this  chapter.  It  is 
not  easy  to  imagine  any  circumstance  attending  non-notice  which 
in  some  form  or  other  is  not  urged  as  an  excuse  for  it.  And  the 
decisions  of  tlie  courts  permit  authorities  to  be  cited  on  both 
sides  of  almost  every  question. 

In  our  endeavor  to  present  the  law  on  this  subject  with  what- 
ever distinctness  may  be  possible,  we  shall  be  aided  by  some 
previous  general  considerations  as  to  the  kinds  and  classes  of 
these  excuses.  Some  of  them  are  so  peculiar,  that  it  is  difficult 
to  arrange  them  in  company  with  any  others,  or  to  bring  tliem 
under  any  general  head.  We  may,  however,  on  tlie  whole,  place 
all  these  excuses  (all  which  have  passed  under  adjudication, 
whether  they  have  been  deemed  sufficient  or  otherwise)  in  four 
broad  divisions. 

The  first  of  these  is  the  excuse  arising  from  tlie  entire  absence 
of  necessity  or  utility,  because  the  party  who  should  receive  the 
notice  must  know  the  facts  as  well  as  the  party  who  sliould  give 
it.  If,  for  example,  A  draws  on  himself,  payable  to  himself,  and 
then  accepts,  and  then  indorses,  a  holder  need  not  first  demand 
of  him  as  drawee,  and  then  notify  iiim  of  non-payment  as  drawer, 
and  then  notify  him  again  as  indorser.  And  we  shall  see  in 
what  way  and  to  what  extent  this  principle  is  applied,  not  where 
a  person  can  be  proved  to  have  had  knowledge  in  fact,  for  it  is 
certain  that  this  is  no  excuse  for  the  want  of  regular  notice, 
but  where  the  person  must  of  necessity  have  the  knowledge  by 
presumption  of  law,  as  where  a  firm  draws  upon  itself,  or  where 
some  member  or  members  of  a  firm  draw  on  the  firm. 

44* 


622  NOTES   AND    BILLS.  [CH.  XIH. 

The  next,  excuse  is  actual  impossibility.  The  ground  of  this 
is,  that  the  law  lays  upon  no  man  an  impossible  duty.  But  this 
impossibility  may  arise  from  some  circumstance,  such  as  the 
death  of  the  party,  which  excuses  delay  only,  and  not  entire 
want  of  notice ;  or  from  some  obstruction  which  may  be  tempo- 
rary only,  as  war,  sickness,  or  tempest,  which  excuses  delay  or 
entire  want  of  notice,  according  to  the  circumstances  of  the  case  ; 
or  the  utter  inability  to  find  the  party  to  be  notified,  or  his  house 
or  place  of  business,  which  is  a  complete  excuse,  unless  it  is 
removed  by  the  efforts  which  the  law  requires,  and  then  it  will 
be  seen  to  excuse  delay  only.  Perhaps  the  questions  presented 
by  insolvency,  and  by  the  recurrence  of  days  in  which  the  law 
forbids  labor  or  permits  idleness,  may  best  be  considered  under 
this  head. 

These  two  classes  of  excuses  are  far  loss  frequent  than  the 
third,  which  is  grounded  on  the  fact  tha<^  die  party  to  be  notified 
had  no  right  whatever  to  draw  or  to  indorse,  and  could  not,  by 
acting  in  his  own  wrong,  acquire  any  right  against  others. 

The  fourth  and  last  class  of  excuses  consists  of  those  which 
allege  a  waiver.  The  ground  on  which  all  excuses  of  this 
class  rest  is,  that  the  right  to  require  notice  may  of  course  be 
given  up,  and  that  it  has  been,  in  the  case  in  question,  vol- 
untarily abandoned  and  renounced ;  and  that  this  has  been 
done  expressly,  or  by  circumstances  which  mean  and  imply 
thib  waiver. 

All  of  these  classes  of  excuses  we  shall  now  proceed  to  con- 
sider, and  shall  endeavor  to  illustrate  the  rules  of  law  respecting 
them  by  a  copious  citation  of  authorities,  and  shall  close  tliia 
chapter  with  some  general  remarks  on  the  subject  of  it. 


Cli.  .XIII.]  EXCUSES    FOR    WANT    OF   NOTICE.  523 


SECTION    I. 

OF  EXCUSES  FOR  NON-NOTICE,  GROUNDED  ON  THE  NECESSARY  KNOWL- 
EDGE  BY   THE   PARTY  TO   BE  NOTIFIED. 

It  has  been  held,  that  where  a  note  is  made  by  one  firm  and 
indorsed  by  another,  and  one  of  the  partners  of  the  indorsing 
firm  is  also  a  partner  of  the  making  firm,  demand  is  necessary,(^) 
and  by  a  reasonable  implication  notice  might  be  here  necessary. (m) 

{t)  Dwij^ht  V  Scovil,  2  Conn.  654.  Swift,  C.  J.  said:  "  The  circumstance  that  ona 
of  the  ciefL'ndants  was  a  member  of  both  tlie  companies  who  made  and  indorsed  the  noto 
can  make  no  difference  ;  for  each  company  is  to  be  considered  as  distinct  persons, 
with  different  funds  and  liabilities  ;  and  there  is  the  same  reason  for  presentment  and 
demand  as  if  the  companies  were  wholly  different.  If  the  companies  should  reside  in 
different  and  distant  places,  the  drawing  of  bills  on  each  other  might  be  convenient  in 
the  course  of  their  business  ;  hut,  on  the  principle  contended  for,  the  company  drawing 
the  bill  might  be  subjected  to  pay  it,  because  one  of  the  partners  belonged  to  both  com- 
panies when  the  company  on  which  it  was  drawn  was  solvent,  and  would  have  paid 
the  bill  if  it  had  been  presented.  It  is  said  that  notice  to  one  partner  is  notice  to  all; 
and  that  here  one  of  the  defendants  knew  that  the  note  was  not  paid.  It  is  true  that 
one  of  the  defendants  must,  in  legal  consideration,  have  known  that  the  note  was  not 
paid ;  but  he  equally  well  knew  that  the  note,  when  it  became  due,  had  not  been  pre- 
sented to  the  makers,  and  payment  demanded;  he  knew  the  fact  that  exonerated  the 
defendants  from  all  liability  on  their  indorsement  to  pay  the  note,  and  it  would  be 
strange  logic  to  say  that  this  knowledge  rendered  the  defendants  liable." 

(«)  But  the  point  may  still,  however,  be  considered  as  an  open  one.  In  "West 
Branch  Bank  v.  Fulmer,  3  Penn.  State,  399,  the  note  was  made  by  one  firm  and 
indorsed  by  another.  All  the  indorsers  were  partners  in  the  firm  which  made  the 
note,  which  firm  had  two  additional  members.  No  notice  to  the  indorsers  was  held 
necessary.  Gibson,  C.  J.  said :  "  As  to  the  liability  of  the  indorsers,  it  is  enough 
that  it  was  decided  in  Porthouse  v.  Parker,  1  Camp.  82,  in  an  action  by  the  payee  of  a 
bill  against  the  drawers,  that,  as  the  acceptor  also  happened  to  be  a  drawer,  there  waa 
no  necessity  for  notice  to  him,  because  the  fact  of  dishonor  was  known  to  him  ;  and 
that  the  knowledge  of  one  was  the  knowledge  of  all.  Now,  putting  the  makers  in  this 
case  in  the  place  of  their  equivalent,  the  acceptor,  in  that,  we  find  that  the  principle 
of  the  decision  covers  the  whole  of  our  case  ;  and  it  is  fortified  by  Taylor  v.  Young, 
."$  Watts,  339,  in  which  it  was  recognized,  and  by  Gowan  v.  Jackson,  20  Johns.  176,  ia 
which  it  was  reasserted.     But  it  is  argued,  that,  though  Cochran  &  Perry  were  liable 

as  makers,  notice  to  them  as  indorsers  was  requisite  to  make  them  liable  as  such 

If,  however,  the  use  of  notice  is  to  give  a  drawer  or  indorser  a  seasonable  opportunity 
tc  arrange  his  aff'airs  with  the  acceptor  or  majcer,  it  must  be  as  available  in  its  conse- 
quences when  it  is  given  to  him  in  the  one  character  as  when  it  is  given  to  him  in  the 
other.  The  principle  of  Porthouse  v.  Parker  is,  that  knowledge  is  notice ;  and  the 
effect  of  it  is,  that  knowledge  of  the  one  firm  was  the  knowledge  of  the  other.  It 
would  be  absurd  in  an  indorser  to  complain  that  he  had  not  been  served  with  formal 
notice  of  what  was  known  to  him,  or  that  he  was  prejudiced  for  want  of  it.  As,  then, 
it  was  as  much  the  business  of  Cochran  &  Perry  as  it  was  the  business  of  the  other 
members  of  the  firm  of  Beers,  Cochran,  &  Co.  to  provide  for  the  payment  of  their  joint 


524  NOTES   AND    BILLS.  [CH.  XIH 

But  where  a  partner  draws  upon  a  firm  of  which  he  is  a  member, 
he  is  not  entitled  to  notice ;  (v)  nor,  it  would  seem,  where  drawers 
draw  on  their  own  firm,  which  has  other  members,  although  it 
would  be  otherwise  if  the  bill  were  drawn  after  a  dissolution. (t^) 

note  at  its  maturity,  and  as  they  all  knew  that  provision  had  not  been  made  for  it, 
proof  of  notice  to  Cochran  &  Perry  would  have  been  superfluous  in  an  action  against 
them  as  indorsers."  It  may  well  be  doubted  whether  any  valid  distinction  can  be 
made  on  this  point  between  the  case  where  the  two  firms  contain  one  common  mem- 
ber, and  where  they  contain  more  than  one. 

(y)  Rhett  v.  Poe,  2  How.  457,  where  the  bill  had  been  accepted.  Fuller  v.  Hooper, 
3  Gray,  334,  where  the  bill  was  not  accepted.  So  Gowan  v.  Jackson,  20  Johns.  176. 
See  Porthouse  v.  Parker,  1  Camp.  82.  In  this  case  the  bill  was  drawn  by  an  agent  of 
George,  James,  and  John  Parker  upon  John  Parker,  and  accepted  by  an  agent  of  the 
iatter.  The  head  note  of  the  case  states  that  the  drawers  were  a  firm.  Tiiis  case  is 
cited  by  Byles  on  Bills,  p.  223,  as  authority  that  notice  to  one  of  two  or  more  parties 
jointly  liable  is  sufficient.  This  is  true,  as  has  been  said,  so  far  as  relates  to  partners, 
but  incorrect  with  reference  to  other  joint  parties. 

(w)  In  Taylor  v.  Young,  3  Watts,  339,  the  bill  was  drawn  by  James  Taylor  &  Co. 
on  the  Pittsburg  Iron  Co.,  in  favor  of  S.  K.  Page  &  Co.  The  drawers,  drawees, 
and  S.  K.  Page  were  partners.  The  bill  was  dated  Aug.  27th,  and  payable  on  demand. 
The  drawers  had  dissolved  their  connection  with  the  drawees  on  Aug.  12th,  which  was 
published  in  a  newspaper  of  that  date  of  which  the  holder  was  a  subscriber.  Notice  to 
the  drawer  was  held  necessary.  Gibsou,  C.  J.  said  :  "  It  is  argued,  however,  that,  as 
regards  the  holder,  the  drawers  are  to  be  considered  as  a  partner  firm  of  the  house  on 
which  the  bill  was  drawn,  and  that  presentment  or  notice  was  unnecessary,  on  the  prin- 
ciple of  Porthouse  v.  Parker,  1  Camp.  82,  iu  which  notice  was  ruled  to  be  superfluous 
where  the  bill  is  drawn  by  several  on  one  of  themselves,  since  the  acceptor,  being  like- 
wise a  drawer,  is  necessarily  apprised  of  the  material  facts,  and  the  knowledge  of  one 
partner  is  the  knowledge  of  all;  the  converse  of  which  was  determined  in  Gowan  v, 
Jackson,  20  Johns.  176,  and  would  be  our  case  if  the  drawer  here  had  been  a  member 
of  the  general  firm  when  the  bill  was  drawn.  But  the  fact  is,  it  had  retired,  — notice 
of  its  retirement  was  published  on  the  12t!i  of  Aug.,  and  the  bill  was  drawn  on  the 
27th.  To  this,  it  is  said,  the  fact  of  withdrawal  may  not  have  been  known  to  the 
holder  when  he  took  the  bill.  But  of  what  importance  is  his  ignorance  ?  It  is  said  lie 
may  have  been  induced  to  omit  presentment  and  notice  of  non-payment  by  a  belief  that 
a  continuation  of  the  relation  in  which  the  parties  once  avowedly  stood  had  rendered 
such  a  measure  unnecessary.  Would  a  reasonable  belief,  founded  on  a  notorious 
course  of  dealing  between  the  parties,  that  the  drawer  had  not  funds  in  the  hands  of 
the  drawee,  be  equivalent  to  the  actual  fact,  and  operate  as  a  disi)ensaiion  from  tlie 
duty  of  prcsenttnent  and  notice  ?  Of  collateral  facts  like  these  the  party  must  judge 
at  his  peril.  In  analogy  to  the  revocation  of  an  agent's  authority,  notice  of  tiie  di-jso- 
lution  of  a  partnership  is  necessary  where  the  outgoing  partner  holds  himself  out  to  tiio 
world  as  the  representative  of  the  firm,  and  attempts  to  bind  it,  but  not  where  he  acts 
professedly  and  exclusively  for  himself.  In  respect  to  the  first,  the  firm  is  bound  for  a 
Bupincncss  which,  in  trade,  is  equivalent  to  fraud  in  not  apprising  the  ])ul)lic  of  the 
cessation  of  a  relation  wiiich  enabled  each  (lartncr  to  contract  for  the  whole.  But  in  a 
transaction  where  the  outgoing  ])artner  professed  to  treat,  not  for  the  firm,  but  for 
liimRcIf,  it  is  not  easy  to  perceive  how  the  misc()ncei)tion  of  a  fact  that  did  not  enter 
into  the  terms  of  the  contract  can  dispense  with  any  of  its  incidents,  or  give  the  party 
dealing  with  him  an  advantage  against  him." 


CH.  XIII.]  EXCUSES   FOR   WANT    OF   NOTICE.  525 

The  question  of  notice  of  the  dissolution  might  perhaps  here 
be  important,  (re) 

It  has  also  been  held,  that  notice  must  be  given  to  the  in- 
dorser  when  one  member  of  a  firm  makes  a  note  and  another 
member  is  indorser,  both  parties  signing  in  their  own  name,  and 
not  in  the  name  of  the  firm,  although  the  note  was  given  for 
goods  purchased  for  partnership  purposes,  and  to  be  paid  for  by 
partnership  funds,  (y) 

SECTION     II. 

OF  EXCUSES  FOR  NON-NOTICE,  GROUNDED  ON  IMPOSSIBILITY  OF  NOTICE. 

We  have  seen  that  the  death  of  the  maker  is  no  excuse  for 
non-demand, (rt)  and,  for  a  still  stronger  reason,  it  cannot  be  an 
excuse  for  non-notice. (6)  So,  as  it  is  no  excuse  for  non-demand 
that  the  indorser  has  been  appointed  administrator  of  the  maker's 
estate, (c)  it  is  also  no  excuse  for  non-notice. (c?) 

(x)  The  remarks  of  Gibson,  C.  J.,  cited  supra,  note  iv,  were  obiter,  as  notice  may  per- 
haps liave  been  brought  home  sufficiently  to  the  holder ;  also,  as  the  learned  judge 
remarked,  the  bill  having  been  received  from  the  payee  after  maturity,  the  holder  was 
bound  by  the  obligations  of  the  payee  at  the  time  of  indorsement,  and  the  latter  was 
well  aware  of  the  dissolution. 

(y)  Foland  v.  Boyd,  23  Penn.  State,  476,  where  one  of  the  partners  refused  to  sign 
the  note  as  maker,  but  consented  to  indorse  it.  Knox,  J.  dissented.  Lowrie,  J.,  deliv- 
ering the  opinion  of  the  court,  said:  "  We  discover  no  substitute  for  notice,  and  no 
excuse  for  its  omission  ;  and  such  was  the  view  taken  elsewhere  in  a  very  similar  case, 
Morris  v.  Husson,  4  Sandf  93.  This  is  not  like  the  cases  where  a  note  has  copartners 
for  the  makers,  and  some  of  them  for  indorsers  ;  and  wliere,  of  course,  the  Uuowl- 
edge  of  the  dishonor  by  the  makers  is  chargeable  on  them  as  indorsers.  This  "suit  is 
upon  the  note,  a  contract  by  which  the  maker  and  indorser  stand  severally  a»»d  not 
jointly  related  to  the  plaintiff,  the  duties  of  each  being  different;  and  it  cannot  at  all 
be  said  that  one  is  liable  for  the  other,  except  according  to  the  contract,  or  that  one  is 
chargeable  with  the  knowledge  of  the  breach  of  contract  of  the  other.  Though  they 
were  partners  in  the  original  purchase,  that  does  not  confound  this  contract  so  as  to 
allow  a  demand  to  be  made  of  the  indorser,  and  notice  to  the  maker,  or  no  notice  or 
demand  at  all,  which  is  really  the  effect  of  what  is  claimed  here." 

(a)  Supra,  p.  445. 

(6)  Price  v.  Young,  1  Nott  &  McC.  438  ;  Gower  v.  Moore,  2.5  Maine,  IG,  where  the 
maker's  estate  was  insolvent,  and  this  was  known  to  the  indorser.  So  where  the  de- 
mand on  the  maker's  administrator  is  unnecessary,  because  the  latter  is  not  liable,  by 
statute,  until  after  a  certain  period,  notice  should  be  given.  See  Hale  v.  Burr.  12 
Mass.  86. 

(c)  Supra,  p.  445,  note  /. 

(rf)  Juniata  Bank  v.  Hale,  16  S.  &  R.  157.     It  is  not  clear  from  the  case  what  kind 


526  NOTES    AKD   BILLS.  [CH.  XIH. 

But  it  cannot  be  deemed  certain  what  will  constitute  notice  in 
such  a  case.  It  may  be  inferred,  perhaps,  from  some  authorities, 
that  a  demand  on  the  indorser  as  administrator,  and  a  notice  to 
him  as  indorser,  are  necessary  to  charge  him  as  indorser. (e) 
But  it  is  not  easy  to  see  why  a  proper  demand  on  him,  with  a 
due  presentment  of  the  note,  does  not  necessarily  contain  all  the 
essential  elements  of  a  regular  notice.  And  it  would  appear  to 
be  superfluous,  if  not  absurd,  to  require  the  holder  to  say,  when 
the  demand  was  ineffectual,  "  Take  notice  that  this  bill  has  been 
dishonored  by  you."  The  only  ground  for  the  requirement  can 
be,  that  the  indorser  must  be  told  that  he  is  looked  to  personally 
for  the  payment  of  the  note  of  the  deceased. (/) 

Where  the  indorser  is  dead,  notice  must  be  sent  to  his  execu- 
tor or  administrator ;  and  if  no  person  has  been  appointed,  or  it 
cannot  be  ascertained  by  the  use  of  due  diligence  who  or  where 
he  or  they  who  have  been  appointed  can  be  found,  notice  must 
be  forwarded  to  the  last  place  of  residence  of  the  deceased. (g-) 
Hence  the  death  of  the  indorser  is  no  excuse  for  neglect  to  give 
notice. (/<)  Even  although  the  administrator  is  not  liable  for  any 
debts  due  from  the  deceased  for  a  certain  period, (i)  still  he  must 


of  a  demand  was  made.  The  statement  of  the  case  says  that  the  note  was  protested, 
but  no  notice  was  j^iven  to  the  indorsers.  The  reasons  for  the  decision  appear  mainly 
to  he  that  it  is  well  settled  that  knowledge  is  not  notice.  Groth  v.  Gyger,  31  Penn. 
State,  271.  In  this  case  the  note  was  presented  at  the  banking-house  of  the  plaintiffs, 
but  it  does  not  appear  whether  the  note  was  payable  there  or  not. 

{(■)  See  Magruder  v.  Union  Bank,  3  Tct.  87,  7  id.  287.  The  head  note  of  the  valu- 
able edition  of  the  reports  of  the  Supreme  Court  by  Mr.  Justice  Curtis  is  in  nearly  the 
same  language  as  the  text.  Perhaps  also  the  same  doctrine  may  be  inferred  from 
Juniata  Bank  v.  Hale,  16  S.  &  R.  1.57. 

( /')  Caunt  »  Thompson,  7  C.  B.  400,  where  the  holder  went  to  the  acccjitor's  house 
on  the  day  the  bill  matured,  and  there  saw  the  drawer,  to  whom  he  showed  the  bill,  and 
said,  '-I  have  brouglit  a  bill  from  Caunt's ;  you  know  what  it  is."  The  drawer  said, 
in  reply,  "I  am  executor  of  W.  (the  acceptor) ;  you  must  persuade  Caunt  to  let  the 
bill  stand  over  a  few  days,  because  W.  (the  acceptor)  has  only  been  dead  a  few  days. 
I  shall  see  the  bill  paid."  This  was  held  sufficient  notice  to  the  drawer.  Nothing 
appears  to  have  been  said  about  a  waiver  of  notice. 

(g)   Supra,  p.  .501. 

(h)  Sec  the  cases  cited  supra,  p.  .501. 

(i)  Oriental  Bank  v.  Blake,  22  Pick.  206,  where  Putnam,  J.  said  :  "But  it  docs  not 
follow,  that,  because  to  charge  an  indorser  no  demand  is  necessary  to  be  made  on  the 
administrator  of  the  maker  of  a  note  or  the  acceptor  of  a  bill  of  exchange  falling  due 
within  the  year  after  the  appointment,  notice  of  the  di.shonor  of  the  bill  is  not  necessary 
to  be  given  to  the  administrator  of  the  indorser,  in  a  reasonable  time.  He  stands  in 
the  place  of  the  indorser;  and  a  want  of  notice  of  the  dishonor  of  the  bill  may  be 


CH.  XIII.]  EXCUSES    FOR   WANT    OF   NOTICE.  527 

have  notice,  because  he  may  at  once,  on  receiving  it,  take  meas- 
ures for  obtaining  indemnity. 

Where  the  maker  or  acceptor  cannot  by  the  use  of  due  dili- 
gence be  found,  nor  his  last  and  usual  place  of  business,  no  de- 
mand on  him  is  necessary  to  charge  an  indorser.(y)  But  the  dif- 
ficulty or  impossibility  of  making  a  demand  of  the  acceptor  or 
maker  is  no  excuse  whatever  for  non-demand  of  the  indorser,  or 
non-notice  to  him.  It  is  possible  that  a  brief  delay  in  making 
demand  and  giving  notice  to  an  indorser  might  be  excused  by 
the  fact  that  the  holder  was  during  that  delay  dih'gcntly  eni})loyed 
in  searching  for  the  maker  or  acceptor.  We  should  regard  this, 
however,  as  extremely  doubtful,  and  a  prudent  holder  would,  in 
such  a  case,  give  the  notice  at  once,  and  at  the  regnlar  time. 

But  the  excuse  would  certainly  be  sufficient  where  the  in- 
dorser could  not  be  found  ;  and  a  delay  of  notice  for  several  days 
has  been  excused  on  proof  that  the  holder  was  unable  to  find  the 
indorvSer.(^•)     If,  however,  after  due  diligence,  the  indorser  cannot 


prejudicial  to  all  persons  interested  in  the  estate  of  liis  intestate.  He,  for  example, 
may  have  paid  to  the  party  liable  to  him  upon  the  bill  money  which  he  might  have  re- 
tained, or  have  otherwise  omitted  to  obtain  security  against  the  undertaking  of  liis  in- 
testate  Payment  by  the  administrator  of  the  acceptor,  at  the  maturity  of  the  bill, 

within  the  year,  could  not  be  enforced  by  legal  process.  Tlie  law  will  presume  that  a 
demand  of  payment  under  such  circumstances  would  be  fruitless.  It  would  be  u-^eful 
to  the  administrator  of  tlie  acceptor,  bnt  would  not  be  of  any  benefit  to  tlie  indorser. 
Whereas,  a  notice  to  the  administrator  of  the  indorser  of  the  non-acceptance  or  non- 
payment of  the  bill  is  of  vital  importance,  inasmuch  as  it  would  enable  him  to  take 
immediate  measures  against  the  parties  liable  to  him,  for  the  security  of  the  estate  of 
his  intestate.  Now  while,  on  the  one  hand,  to  charge  an  indorser,  the  law  will  not  re- 
quire the  holder  to  make  a  vain  demand  on  the  acceptor,  it  will  not,  on  the  other  hand, 
excuse  him  for  neglecting  to  give  essential  notice.  And  we  are  all  of  opinion  that  the 
case  at  bar  falls  within  the  latter  position.  The  reasonable  notice  which  would  have 
been  required  to  be  given  to  the  indorser  is  quite  as  necessary  to  be  given  to  iiis  execu- 
tor or  administrator." 

(_;')   Supra,  p.  448,  note  d. 

(k)  In  Bateman  v.  Joseph,  2  Camp.  461,  12  East,  433,  there  was  a  delay  of  three 
days,  which  was  excused  for  this  reason.  Lord  Ellenhorough,  2  Camp.  461,  said: 
"  When  the  holder  of  a  bill  of  exchange  does  not  know  where  the  indorser  is  to  be 
found,  it  would  be  very  hard  if  he  lost  his  remedy  by  not  communicating  immediate 
notice  of  the  dishonor  of  the  bill ;  and  I  think  the  law  lays  down  no  such  rigid  rule. 
The  holder  must  not  allow  himself  to  remain  in  a  state  of  passive  and  contented  igno- 
rance ;  but  if  he  uses  reasonable  diligence  to  discover  the  residence  of  the  indorser,  I 
conceive  that  notice  given  as  soon  as  this  is  discovered  is  due  notice  of  the  dishonor 
of  the  bill,  within  the  usage  and  custom  of  merchants."  In  Baldwin  v.  Richardson,  1 
B.  &  C.  24.5,  a  delay  of  nine  days  was  excused.  So  in  Firth  v.  Thrush,  8  B.  &  C.  387, 
2  Man.  &  R.  359,  where  there  was  a  delay  of  more  than  two  months.    Browning  v.  Kin- 


528  NOTES   AND    BILLS.  [CH.  XIH. 

ne  found,  nor  his  last  and  usual  place  of  abode  or  of  business, 
no  notice  can  be  necessary,  because  it  is  impossible. (/) 

When  the  maker  has  absconded,  some  authorities  regard  tliis 
fact  as  a  sufficient  excuse  for  non-demand,  while  others  hold  that 
reasonable  endeavors  should  be  used  to  find  his  last  place  of  resi- 
dence or  business. (m)  But  notice  should  certainly  be  given  to 
tlie  indorser.(n) 

Wliere  the  drawer  or  indorser  has  himself  absconded,  notice 
should  be  given  to  some  person  who  represents  the  estate,  or  who 
is  a  member  of  his  family ;  or  perhaps  at  his  last  usual  place  of 
residence,  (o) 

As  the  indorser  may  require  that  due  demand  should  be  made 
on  the  maker,  although  the  indorser  knew  the  maker's  insolvency 
at  the  time  of  the  indorsement, (;?)  the  same  rule  would  apply 
with  still  greater  reason  to  the  question  of  notice  to  an  indorser. 
We  should  say,  therefore,  that  the  maker's  insolvency  would  fur- 
nish no  excuse  for  want  of  notice  to  an  indorser ;  (q)  but  tho 


near,  Gow,  81,  where  there  was  a  delay  of  one  day.  Sturges  v.  Derrick,  Wightw.  76, 
where  there  was  a  delay  of  four  months. 

(/)  In  Beveridge  v.  Burgis,  3  Camp.  262,  Lord  FJlenborough  said  :  "  Ignorance  of  the 
indorser's  residence  may  excuse  the  want  of  due  notice,  but  the  party  must  show  that 
he  used  reasonable  diligence  to  find  it  out."     Hunt  v.  Maybec,  3  Seld.  266. 

(m)  Supra,  pp.  449,  4.50. 

{n)  Sec  May  j\  Coffin,  4  Mass.  341,  infra,  note  q. 

(o)  See  Ex  parte  Kohde,  Mont.  &  M.  430 ;  Ex  parte  Johnston,  1  Mont.  &  A 
622,  630. 

{/))  Siipni,  p.  446,  note  r, 

iq)  Nicholson  v.  Guuthit,  2  11.  Bl.  609,  infra,  p.  529,  note  r.  Thackray  v.  Blackett, 
3  Camp.  164,  where  tlie  defendant,  a  drawer,  was  aware  of  the  insolvency  of  the  ac- 
ceptor before  maturity,  and  knew  the  bill  would  not  be  paid.  Whitfield  v.  Savage,  2 
Bos.  &  P.  277,  wliere  the  bill  was  drawn  by  the  defendant  for  the  accommodation  of 
an  indorser.  Clcgg  r.  Cotton,  3  id.  239,  where  the  defendant  had  drawn  on  his  prin- 
cipal, and  hearing  of  his  being  likely  to  fail,  deposited  effects  of  the  principal  in  the 
hands  of  an  indorser.  Esdaile  v.  Sowerby,  11  East,  114,  where  the  insolvency  of  tho 
acceptor  and  the  bankruptcy  of  the  drawer  were  known  to  the  defendant,  an  indorser, 
nearly  a  month  before  the  bill  matured.  See  Smith  v.  Bccket,  13  East,  187,  where 
the  maker  of  a  note  had  become  bankrupt.  So  Ex  parte  Wilson,  II  Ves.  410.  So 
Boultbee  v.  Stubbs,  18  id.  20.  See  Bowes  v.  Howe,  .5  Taunt.  30,  16  East,  112; 
May  t'.  Coffin,  4  Mass.  341,  where  tlie  indorser  was  held  entitled  to  notice  of  non- 
acceptance,  although  the  drawer  had  become  insolvent  and  had  absconded  ;  Par 
son.i,  C.  J.,  Bond  v.  Farnham,  5  Mass.  170;  Crosscn  v.  Hutchinson,  9  id.  20.");  Sand- 
ford  r.  Dillaway,  10  id.  52,  where  the  indorser  was  aware,  at  the  time  of  indorsing, 
of  the  maker's  insolvency;  Farnum  ».  Fowle,  12  id.  89,  where  the  maker  was  noto- 
riously insolvent  six  months  before  the  note  was  made,  and  so  continued  until  after 
maturity  ;  Shaw  v.  Reed,  12  Pick.  132 ;  Granite  Bank  r.  Ayers,  16  id.  392  ;  Shaw,  C.  J., 


CH.  XIII.]  EXCUSES   FOR    WANT    OF   NOTICE.  529 

authorities  are  not  in  unison  on  this  point. (r)     So  also,  where  the 

Lee  Bank  v.  Spencer,  6  Met.  308 ;  Mead  v.  Small,  2  Grecnl.  207  ;  Groton  v.  Dalllieim, 
6  id.  476  ;  Hunt  P.  VVadluigh,  26  Maine,  271,  where  the  insolvency  of  the  acceptor  was 
known  to  the  indorser  wlicn  he  made  his  indorsement;  Buck  v.  Cotton,  2  Conn.  126, 
where  the  defendant  indorsed  for  accommodation  of  the  maker,  knowing  his  insol- 
vency :  Holland  v.  Turner,  10  id.  308;  Jackson  v.  Richards,  2  Caines,  343;  Bruce  v. 
Lytle,  13  Barb.  163,  where  the  defendant,  an  indorser,  was  a  clerk  in  the  maker's 
store  before  the  note  was  made  and  after  its  maturity  ;  Benedict  »  Caffe,  5  Duer,  226 ; 
Barton  v.  Baker,  1  S.  &  11.  334,  wiiere  the  indorser  was  aware  of  the  insolvency  of  the 
maker  when  the  note  was  made  ;  Nash  v.  Harrington,  2  Aikens,  9  ;  Duncan,  J.,  Gib!)s 
V.  Cannon,  9  S.  &  R.  198,  201,  16  id.  261  ;  Orear  v.  McDonald,  9  Gill,  3.50  ;  Walton 
V.  Watson,  13  Mart.  La.  347;  Kdwards  v.  Thayer,  2  Bay,  217;  Jervey  v.  Wilbur, 
I  Bailey,  453.  where  the  indorser  knew  of  the  insolvency  of  the  maker  before  the  note 
matured.  So  AUwood  v.  Haseldon,  2  id.  457  ;  Course  v.  Shaekleford,  2  Nott  &  McC. 
283;  Kiddcil  v.  Ford,  2  Const.  R.  678,  3  Brev.  178  ;  Hightower  v.  Ivy,  2  Port.  Ala. 
308,  where  the  indorser  was  aware  of  the  maker's  insolvency  ;  Pons  v.  Kelly,  2  Hayw. 
45 ;  Denny  v.  Palmer,  5  Ired.  610. 

(r)  In  De  Berdt  v.  Atkinson,  2  H.Bl.  336,  supra,  the  opinion  of  Lord  C.J.  Eyre  pro- 
ceeded upon  the  ground  that  the  insolvency  of  the  maker,  known  to  the  indorser  when 
he  indorsed  the  note  for  the  maker's  accommodation,  was  a  good  excuse  for  want  of 
notice.  The  learned  judge  said  :  "But  consider  on  what  ground  an  early  demand  is 
in  general  required.  It  is  because  if  any  delay  takes  place,  the  effects  may  be  gone  out 
of  tlie  hands  of  the  acceptor  ;  and  if  the  holder  chooses  to  wait,  he  docs  it  at  his  own 
risk.  But  apply  this  rule  to  the  case  of  known  insolvency,  what  docs  it  signify  to  the 
person  who  is  liable  in  the  second  stage  at  what  time  the  demand  is  made  on  the 
drawer,  who  was  known  to  be  insolvent  from  the  beginning  ?  General  rules  are  estab- 
lished for  general  convenience,  and  I  agree  that,  if  the  drawer  is  not  known  to  be 
insolvent,  the  fact  of  insolvency  will  not  excuse  the  want  of  an  early  demand  ;  hut  the 
fact  of  knowledge  excludes  all  the  presumptions  that  would  otherwise  arise.  Then  as 
to  notice,  and  the  application  for  payment  to  the  defendant,  what  did  it  signify  to  him 
when  that  application  was  made  ?  It  could  make  no  difference  to  hitn  whether  it  were 
made  on  one  day  or  another  ;  he  meant  to  guarantee  the  payment  of  the  note,  and 
there  was  no  possibility  of  an\'  loss  happening  to  him  from  the  want  of  notice.  In  this 
instance,  therefore,  the  general  rule  fails  in  its  application."  Buller,  J  remarked  :  ''It 
is  said  that  the  insolvency  of  the  drawer  does  not  take  away  the  necessity  of  notice ; 
that  is  true  where  value  has  been  given,  but  no  further."  Heath  and  Rooke,  JJ.  simply 
concurred.  It  is  remarkable,  that  within  two  years  after  this  decision  the  same  court 
appear  to  have  decided  directly  contrary  in  Nicholson  v.  Gouthit,  2  H.  Bl.  609,  Lord 
C.  J.  El/re,  delivering  the  opinion  of  the  court,  and  Hmtk  and  Rooke,  JJ.  concurring. 
Bailer,  J.  does  not  appear  to  have  been  present.  No  notice  was  taken  of  the  former 
case  by  either  counsel  or  court.  In  the  first  case  the  indorser  indorsed  without  having 
received  any  consideration,  and  aware  of  the  maker's  insolvency.  In  the  latter,  the 
maker  being  insolvent,  the  indorser  undertook  to  guarantee  a  debt  due  from  the  maker 
to  a  third  party,  by  indorsing  his  note  as  a  security  for  the  debt.  The  first  case,  how- 
ever, must  be  considered  as  overruled  by  the  latter,  and  has  been  frequently  doubted. 
In  AUwood  V.  Haseldon,  2  Bailey,  457,  Johnson,  J.  said,  that  "  it  is  not  law,  either 
\n  this  country  or  in  England."  So  Smft,  C.  J.,  Hosmer  and  Gould,  JJ.,  Buck  v. 
Cotton,  2  Conn.  126;  Nelson,  J.,  Mechanics'  Bank  v.  Griswold,  7  Wend.  165,  169.  In 
Jackson  i'.  Richards,  2  Caines,  343,  Keiit,  C.  J.  said  :  "  It  has  been  laid  down  in  the  case 
of  De  Berdt  v.  Atkinson,  2  H.  Bl  336,  that  the  payee  of  a  promissory  note  {supra,  p.  528, 

Vol.  I.— 2   I 


530  NOTES   AND   BILLS.  [CH.  Xm. 

maker  dies  leaving  his  estate  insolvent,  not  only  must  demand  be 
made, (5)  but  notice  must  be  given. (^) 

As  the  loss  of  a  bill  can  be  no  excuse  for  want  of  presentment 
and  demand,  so  it  can  be  none  for  want  of  notice. (?f) 

It  is  a  sufficient  excuse  for  not  forwarding  the  notice  on  the 
regular  day,  that  it  was  Sunday,  or  some  other  legal  holiday, (?;) 
and  the  same  doctrine  has  been  said  to  extend  to  Saturday,  where 
the  holder  was  a  Jew. (2^)  We  have  stated  on  a  previous  page 
the  various  holidays  sanctioned  by  usage,  by  statute,  or  by  corn- 


note  q),  indorsing  it  to  give  it  currency,  and  knowing  of  the  insolvency  of  the  malicr  at 
the  time  of  such  indorsement,  cannot  insist  on  the  want  of  demand  and  notice  ;  because 
he  was  not  an  indorser  in  the  common  course  of  business,  and  cannot  be  aiFected  by 
tlie  want  of  notice.  The  same  point  was  afterwards  ruled  by  Bulla;  J.,  at  Nisi  Prius, 
in  Corney  v.  Da  Costa,  1  Esp.  302.  But  within  two  years  subsequent  to  the  first  de- 
cision the  same  court  decided  directly  the  contrary  in  the  case  of  Nicholson  v.  Gouthit, 
2  H.  Bl.  609.  I  think  the  reasoning  in  the  last  decision  the  best,  and  ought  to  bo 
followed."  The  case  of  Corney  v.  Da  Costa,  1  Esp.  302,  is,  however,  distinguish.able, 
as  will  be  seen  subsequently.  It  would  appear  from  the  case  of  Ex  parte  Solarte,  2 
Deac.  &  C.  261,  that  the  court  considered  the  bankruptcy  of  the  drawer  before  ma- 
turity was  a  sufficient  excuse  for  want  of  notice  to  him,  the  acceptor  having  also 
become  bankrupt.  But  Erskine,  C.  J.,  in  Ex  parte  Johnston,  1  Mont.  &  A.  622,  626, 
said  that  the  reason  for  the  decision  in  the  former  case  was,  that,  under  the  circum- 
stances, the  assignees  were  precluded  from  setting  up  the  want  of  notice  as  a  defence, 
because  they  had  not  advened  to  the  objection  in  any  of  their  affidavits,  nor  was  it 
taken  when  before  tlie  commissioner,  but  urged  for  the  first  time  in  argument  before 
the  court.  In  Clark  v.  Minton,  cited  2  Const.  K.  680,  682,  it  was  held  that  tlie  re- 
corded insolvency  of  the  maker  under  the  insolvent  acts,  before  maturity,  was  a 
sufficient  excuse  for  want  of  notice  to  the  indorser.  This  case  is  reported  2  Brev.  185. 
See  also  Kiddcll  v.  Peronneau,  cited  id.  188.  In  Bogy  v.  Kcil,  1  Misso.  743,  Wash, 
J.  said  :  "  Nothing  but  the  maker's  insolvency  at  the  time  of  indorsing  his  note,  or 
some  such  circumstances  as  show  that  the  indorser  did  not  rely  upon  the  maker's 
liability  or  punctuality,  or  had  no  right  to  rely  upon  payment  by  the  maker,  will,  in  the 
opinion  of  this  court,  dispense  with  the  necessity  of  giving  the  indorser  notice."  In 
M'Clcllan  i;  Clarke,  2  Brev.  106,  where  the  indorser  knew,  when  he  indorsed,  that 
the  maker  had  absconded,  and  was  insolvent,  no  notice  was  held  necessary.  In 
Stothart  V.  Parker,  1  Overt.  260,  where  the  insolvency  was  known  to  the  indorser  when 
he  indorsed,  no  notice  was  held  necessary. 

(s)  Supra,  p.  447,  note  u. 

(<)  Johnson  v.  Harth,  1  Bailey,  482  ;  Gower  v.  Moore,  25  Maine,  16  ;  Lawrence  n. 
Langlcy,  14  N.  H.  70,  where  one  maker  had  become  bankrupt  before  maturity,  and 
the  other  had  died  insolvent.  But  in  Davis  v.  Francisco,  11  Misso.  572,  notice  was 
held  not  necessary  to  an  indorser  of  a  note  over  due,  he  being  aware  that  the  maker 
had  dicil  insolvent.     Scott,  J.  dissenting. 

(u)   Infra,  Vol.  II.  p.  261. 

(v)  Supra,  p.  515. 

(w)  In  Lindo  v.  Unsworth,  2  Camp.  602,  Lord  EUerAorough  said :  "  The  law  mer 
rfiant  respects  the  religion  of  different  people." 


CH.  XIII.]  EXCUSES   FOR   WANT   OF  NOTICE.  531 

nion  law,(a;)  and  also  that  notices  should  be  sent  on  the  next 
succeeding  business  day,  because  the  holidays  are  not  counted 
at  all.(2/) 

Where  a  note  is  indorsed  at  so  short  a  period  before  it  will  be 
due,  and  the  indorser  knows  that  a  demand  on  the  maker  is 
impossible  by  reason  of  the  distance  at  which  he  lives  from  the 
place  at  which  the  indorsement  was  made,  a  reasonable  delay 
in  demanding  the  note  would  probably  be  excused  as  to  that 
indorser.  (z) 

And  where  a  joint  note  has  been  indorsed,  and  the  makers  live 
so  far  apart  that  a  presentment  and  demand  on  both  on  tlie  day 
of  maturity  is  impossible,  the  same  excuse  would  apply  to  the 
same  extent,  (a)  In  both  of  these  cases,  which  might  almost  be 
considered  as  coming  under  the  law  of  waiver,  we  should  say 
that  notice  need  not  be  given  until  after  a  regular  and  legal  de- 
mand could  be  made.     But  we  have  no  positive  authority  for  this. 

A  delay  of  some  days  has  been  excused  by  the  fact  that  the 
notice  was  taken  from  the  post-office  by  a  person  of  the  same 
name  with  him  for  whom  it  was  intended. (6) 

Among  the  circumstances  which  have  been  considered  as  con- 
stituting a  sufficient  excuse  for  want  of  notice,  or  rather  for  a 
delay  of  notice,  are,(c)  the  prevalence  of  a  malignant  disease, 
which  rendered  it  dangerous  to  enter  the  infected  district, (c?)  and 

(x)   Supra,  pp.  400  -  403. 

{y)  Supi-a,  p.  515. 

(z)  There  must,  however,  in  this  as  in  other  cases,  be  due  diligence.  See  Anderton 
V.  Beck,  16  East,  248,  and  Boehm  v.  Sterling,  7  T.  li.  423.  In  France,  an  indorser 
transferring  a  bill  so  late  as  to  make  regular  notice  impracticable,  cannot  take  advan- 
tage of  it,  but  prior  indorsers  and  the  drawer  may.     Pardessus,  451. 

(a)  Supra,  p.  363. 

(6)  Jones  v.  Wardell,  6  Watts  &  S.  399. 

(c)  Hopkirk  v.  Page,  2  Brock.  C.  C.  20.  See  U.  S.  v.  Barker,  4  Wash.  C.  C.  464, 
12  Wheat.  559,  1  Paine,  C.  C.  156.     See  Patience  v.  Townley,  2  J.  P.  Smith,  223. 

(d)  Tunno  v.  Lague,  2  Johns.  Cas.  1.  Contra,  Roosevelt  v.  Woodhull,  Anthon,  35. 
In  this  case  the  notice  for  the  plaintiff  arrived  in  New  York  some  time  in  September. 
The  plaintiff  had  left  the  city  on  account  of  an  epidemic  which  then  prevailed,  and  on 
his  return,  in  October,  found  the  protested  bill  under  the  door  of  liis  office.  He  had 
(eft  no  one  in  charge  of  his  business,  nor  had  he  placed  there  any  notification  of  the 
^lace  to  which  he  had  removed.  He  sent  the  notice  to  the  defendant  immediately  after 
its  discovery.  Van  Ness,  J.  nonsuited  him.  This  matter  is  now  regulated  by  statute  in 
New  York,  by  which  parties  leaving  their  place  of  business  within  the  infected  district 
are  required  to  register  their  names  and  the  places  to  which  they  may  wish  their  notices 
to  bo  sent ;  otherwise  it  will  be  suflScient  for  the  party  notifying  to  deposit  the  notice  in 
the  post-office. 


532  NOTES   AND   BILLS.  [CH.  Xffl. 

a  violent  timpest,  wliich  has  so  obstructed  the  roads  as  to  ren- 
der travelling  over  them  impossible.  Among  the  circumstances 
offered  as  an  excuse,  but  held  to  be  insufficient,  is  the  dangerous 
illness  of  an  indorser's  wife.(e) 

It  must  always  be  remembered,  that  the  excuse  of  impossibil- 
ity, on  wliatever  facts  it  may  rest,  continues  only  so  long  as  the 
impossibility  continues.  That  is,  if  a  party  bound  to  give  notice 
gives  none,  because  he  cannot  give  it  at  the  regular  time,  but  can 
give  notice  at  a  subsequent  period  within  wliich  the  notice  may 
possibly  be  of  use,  he  is  bound  to  give  it  then.  In  other  words, 
the  excuse  of  an  impossibility  which  is  not  permanent  is  only  an 
excuse  for  a  delay  until  the  impossibility  is  removed. (/) 


SECTION    III. 

EXCUSES  FOR  NON-NOTICE,  GROUNDED  ON  THE  ABSENCE  OF  RIGHT 
IN  ANY  PARTY  TO   REQUIRE  NOTICE. 

The  most  usual  and  important  excuse  for  want  of  notice,  on 
this  ground,  arises  in  the  case  of  bills  being  drawn  without  there 
being  any  funds  belonging  to  the  drawers  in  the  hands  of  the  par- 
ties upon  whom  the  bills,  are  drawn.  We  propose  to  consider, 
also,  in  this  place,  how  far  this  fact  operates  as  an  excuse  for  the 
absence  of  proper  presentment. 

In  the  first  and  leading  case  on  this  subject,  decided  by  the 
Court  of  King's  Bench  in  the  year  1786,  it  was  held,  that  when 


(e)  Turner  v.  Leach,  Chit.  Bills,  452,  an  action  by  the  eleventh  indorscr  against  the 
eighth.  The  notice  was  duly  left,  on  Sept.  4th,  at  the  house  of  the  tenth  indorscr, 
who,  in  consequence  of  the  dangerous  illness  of  his  wife  at  a  distant  place,  had  left 
his  house,  on  Sept.  1st,  in  charge  of  a  boy,  who  had  no  authority  to  open  letters,  and 
intending  to  return  on  Sept.  3d.  Owing  to  the  extreme  illness  of  his  wife,  he  did  not 
return  until  Sept.  8th,  when  the  notice  was  duly  forwarded  to  the  j)huntifF,  who  took  up 
the  bill,  and  then  sued  the  defendant,  who  insisted  upon  a  discharge  on  the  ground  of 
laches  in  forwarding  the  notice.  It  was  urged  for  the  i)laintitf,  that  the  dangerous  sick- 
ness of  the  prior  indorser's  wife  excused  his  absence  from  home  and  the  delay  in  giving 
notice  of  tlie  dishonor ;  and  that,  as  tlie  dishonor  is  contrary  to  the  contract  and  the 
oxpcctatiun  of  the  parties,  there  is  no  reason  for  requiring  an  indorscr  to  be  in  the 
way,  or  to  apjioint  an  agent,  in  his  absence,  to  provide  for  such  an  event.  ]5ut  Lord 
ElUmltoroiiyh  ruled  that  these  circumstances  constituted  no  excuse  for  the  deluy  in  giv- 
ing notice.     This  case  is  reported,  but  not  on  this  point,  iu  4  B.  &  Aid.  451. 

{/)  Bi.ale  r.  Parrish,  20  N   Y.  407. 


CH.  XIII.]  EXCUSES   FOR   WANT   OF   NOTICE.  533 

the  drawer  has  no  effects  in  the  hands  of  the  drawee,  no  notice 
of  dishonor  is  necessary,  (g")  The  reason  given  for  this  decision 
by  one  of  the  judges  (A)  is,  that  the  drawing  under  such  circum- 
stances is  a  fraud  on  the  part  of  the  drawer,  and  deprives  him 
of  the  usual  right  to  notice.  Tlie  reason  given  by  another 
judge  (i)  is,  that  the  drawer  cannot  possibly  be  injured  by  want 
of  notice,  and  that  he  has  no  right  to  draw  or  to  expect  payment. 


{g)  Bickerdike  v.  Bollraan,  1  T.  R.  405.  The  drawer  was  indebted  to  the  drawee, 
in  this  case,  to  a  hirge  amount.  The  bill  was  due  Oct.  18th,  and  presented  on  that 
day  for  payment,  and  no  notice  of  the  refusal  was  given.  The  bill  does  not  appear 
to  have  been  accepted.  This  case  is  affirmed  and  recognized  in  Goodall  v.  DoUey,  1 
T.  R.  712,  and  Rogers  v.  Stevens,  2  id.  713.  The  question  was  raised  in  Gale  v. 
Walsh,  5  id.  239. 

(h)  Bickerdike  v.  Bollman,  1  T.  R.  40.5,  Ashhurst,  J.,  who  said  :  "  As  to  the  general 
rule,  it  has  never  been  disputed  that  the  want  of  notice  to  the  drawer,  after  the  dishonor 
of  a  bill,  is  tantamount  to  payment  by  him  ;  but  that  rule  is  not  without  exceptions,  and 
particularly  in  the  case  mentioned  by  the  plaintiff's  counsel,  that  notice  is  not  necessary, 
to  be  given  where  the  drawer  has  no  effects  in  the  hands  of  the  drawee,  for  it  is  a  fraud 
in  itself,  and  if  that  can  be  proved,  the  notice  may  be  dispensed  with."  Fraud  was 
also  said  to  be  the  reason  of  the  rule  laid  down  in  Bickerdike  v.  Bollman,  by  Lord  At- 
vanlei/,  C.  J. ;  Chambre  and  Heath,  JJ.,  in  Clegg  v.  Cotton,  3  Bos.  &  P.  239  ;  Hosmer. 
J.,  Buck  V.  Cotton,  2  Conn.  126;  Sharkey,  C.  J.,  Cook  v.  Martin,  5  Smedes  &  M. 
379  ;  Swan,  J.,  Miser  v.  Trovinger,  7  Ohio  State,  281.  Mr.  Wallace,  in  his  note  in 
2  Smith  L.  C.  22,  says  that  fraud  is  the  "  reason  and  limit  of  the  exception."  He  also 
says  that  all  the  cases  in  which  demand  and  notice  are  not  requisite  to  charge  the 
drawer  or  indorser  are  cases  of  fraud.  But  tliis  is  clearly  incorrect,  for  v/e  shall  have 
occasion  to  mention  excuses  which  have  nothing  whatever  to  do  with  fraud. 

(i)  Bickerdike  v.  Bollman,  1  T.  R.  405,  Buller,  J.,  who  said  :  "  On  the  second  trial 
of  the  cause  of  Tindal  v.  Brown,  1  T.  R.  167,  before  me  at  Guildhall,  the  jury  told  me 
they  found  their  verdict  for  the  plaintiff,  on  the  ground  that  it  had  not  appeared  from 
the  evidence  that  any  injury  had  arisen  to  the  party  from  want  of  notice.  In  conse- 
quence of  which,  upon  the  subsequent  trial,  I  told  the  jury  that,  where  a  bill  wa.s 
accepted,  it  was  prima  facie  evidence  that  there  were  effects  of  the  drawer  in  the  hands 
of  the  acceptor.  The  mistake  of  the  jury  on  the  former  occasion  had  arisen  from  their 
taking  it  for  granted  that  the  drawer  had  not  been  injured  by  the  want  of  notice,  be- 
cause he  had  not  proved  it,  whereas  that  proof  lay  on  the  plaintiff  to  produce.  And 
upon  my  mentioning  this  matter  to  the  court,  they  thought  that,  if  there  were  no 
effects  in  the  hands  of  the  acceptor,  that  would  vary  the  question  very  much,  as  the 
drawer  could  not  be  hurt.  The  law  requires  notice  to  be  given  for  this  reason,  because 
it  is  presumed  that  the  bill  is  drawn  on  account  of  the  drawee's  having  effects  of  the 
drawer  in  his  hands ;  and  if  the  latter  lias  notice  that  the  bill  is  not  accepted,  or  not 
paid,  he  may  withdraw  them  immediately.  But  if  he  lias  no  effects  in  the  other's 
hands,  then  he  cannot  be  injured  for  want  of  notice.  Soon  after  I  sat  on  this  bench,  I 
tried  a  cause  at  Guildiiall,  on  a  bill  of  exchange,  which  was  either  drawn  or  accepted 
^y  a  person  residing  in  Holland  ;  and  a  full  special  jury,  under  my  direction,  found  a 
verdict  for  the  plaintiff,  notwithstanding  no  notice  had  been  given  to  the  drawer  of  the 
bill's  having  been  disiionored  ;  because  he  had  no  effects  in  the  hands  of  the  person  on 
whom  the  bill  was  drawn.  That  verdict  never  was  objected  to  ;  and  if  it  be  proved  on 
45* 


534  NOTES  AND   BILLS.  [CH.  XIIL 

It  has  been  the  subject  of  frequent  regret  on  the  part  of  many 
emijient  English  judges, (y)  that  the  rule  requiring  strict  notice 
in  all  cases  was  ever  infringed  upon ;  and  while  recognizing  the 
authority  of  the  original  case,  they  have  declared  that  it  is  not  to 
be  extended. (^') 

In  fact,  it  has  been  remarked,  that  in  their  desire  to  confine  the 
operation  of  the  exception  within  the  smallest  practicable  limit, 


the  part  of  the  plaintiiF,  that,  from  the  time  the  bill  was  drawn  till  the  time  it  became 
due,  the  drawee  never  had  any  effects  of  the  drawer  in  his  hands,  I  think  notice  to  the 
drawer  is  not  necessary ;  for  he  must  know  whether  he  had  effects  in  the  hands  of  the 
drawee  or  not;  and  if  he  had  none,  he  had  no  right  to  draw  upon  him,  and  to  accept 
payment  from  him  ;  nor  can  he  be  injured  by  the  non-payment  of  the  bill,  or  the  want 
of  notice  that  it  has  been  dishonored."  Absence  of  the  possibility  of  injury  is  given  as 
the  reason  for  the  exception  by  Buller,  J.,  in  Goodall  v.  DoUey,  1  T.  R.  712,  714; 
Lord  Ellenhorough,  C.  J.,  Legge  v.  Thorpe,  2  Camp.  310 ;  Blackhan  v.  Doren,  2  id.  503  ; 
Lord  Denman,  C.  J.,  Terry  i'.  Parker,  6  A.  &  E.  502  ;  Thompson,  J.,  Hoffman  v.  Smith, 
1  Caines,  157  ;  Boyle,  C  J.,  Ralston  v.  Bullitts,  3  Bibb,  261,  263;  Dorsey,  J.,  Eichel- 
berger  v.  Finley,  7  Harris  &  J.  381,  iiifra,  p.  535,  note  /. 

(j)  Lord  Ellenborough,  C.  J.,  Blackhan  v.  Doren,  2  Camp.  503 ;  Legge  v.  Thorpe, 
id.  310;  Orr  v.  Maginnis,  7  East,  359,  where  he  said  that  it  had  been  regretted  by  "a 
very  learned  person  who  was  counsel  for  the  plaintiff"  in  that  case."  This  was  said  to 
refer  to  Chambre,  J.,  in  7  East,  362,  note  a,  and  to  Lord  Eldon,  in  12  id.  173,  note  d. 
Chambre  wl^s  counsel  for  the  plaintiffs,  as  appears  by  the  report  of  the  case,  1  T.  R. 
406.  Le  Blanc,  J.,  Claridge  v.  Dalton,  4  Maule  &  S.  226  ;  Abbott,  C.  J ,  Cory  v.  Scott, 
3  B.  &  Aid.  619  ;  Lord  Alvanley,  C.  J.,  Clegg  v.  Cotton,  3  Bos.  &  P.  239  ;  Bosanquet, 
J.,  Latittc  V.  Slattcr,  6  Bing.  623  ;  Lord  Tind<d,  C.  J.,  id.,  who  said  it  was  "  an  ex- 
cepted case  " ;  Parke,  B.,  Carter  v.  Flower,  16  M.  &  W.  743,  748.  So  also  Leicis,  C.  J., 
Case  V.  Morris,  31  Penn.  State,  100,  104.  In  Ex  parte  Heath,  2  Ves.  &  B.  240,  Lord 
Eldon  said  :  "  I  have  often  lamented  the  consequences  of  the  distinction,  introduced  in 
modern  times,  as  to  the  necessity  of  giving  notice  of  the  non-payment  or  non-accept- 
ance of  a  bill  of  exchange,  whether  the  acceptor  had  or  had  not  effects ;  and  I  have 
the  satisfaction  of  finding  that  my  opinion  has  been  adopted  by  the  courts  of  law.  Ac- 
cording to  the  old  rule,  a  bill  of  exchange,  purporting  upon  the  face  of  it  to  be  for 
value  received,  the  inijilication  of  law  from  the  acceptance  was,  that  the  acceptor  had 
effects.  Then  they  came  to  this  general  doctrine,  that  it  is  not  necessary  for  the  holder 
to  give  notice,  if  he  can  sliow  tliat  the  acceptor  had  no  effects.  The  first  objection  is, 
who  is  to  decide  whether  there  are  effects  or  not  ?  In  the  simple  case,  where  there  is 
nothing  but  that  particular  bill,  and  no  other  dealing  between  them,  there  is  no  diffi- 
culty ;  but  if  there  are  complicated  engagements,  and  various  accommodation  transac- 
tions, no  one  can  say  whether  there  arc  effects  or  not." 

(k)  Lord  Ellmbovowjh,  C.  J.,  in  Thackray  v.  Blackctt,  3  Camp.  164,  said  :  "Judges 
of  great  authority  have  doubted  the  propriety  of  the  rule  laid  down  in  Bickerdikc  r. 
Bollman,  and  I  certainly  will  not  give  it  any  extension."  So  in  Orr  t'.  Maginnis,  7 
East,  359,  the  same  judge  said  :  "  I  shall  anxiously  resist  the  further  extension  of  the 
exception."  And  in  Uucker  v.  Hiller,  16  East,  43  :  "I  know  the  opinion  of  my  Lord 
Chancellor  Eldon  to  be,  that  the  doctrine  of  that  case  ought  ftot  to  be  pushed  further." 
So  Pnike,  B.,  Carter  v.  Flower,  16  M.  &  W.  743,  748;  Lewis,  C.  J.,  Case  v.  Monii. 
31  Penn.  State,  100,  104. 


CH.  XIII.]  EXCUSES   FOR   WANT   OF  NOTICE.  535 

they  have  frittered  it  away  until  there  is  but  little  of  it  left ;  and 
the  reasons  upon  which  they  rest  in  tlieir  decisions  ai-e  so  various 
and  unsatisfactory,  that  it  is  a  task  of  no  inconsiderable  diffi- 
culty to  extract  from  them  any  certain  rule  of  law  by  which  this 
class  of  cases  may  be  readily  distinguished. (/) 

The  true  test,  in  our  opinion,  in  each  case,  is  this :  Had  the 
drawer,  under  the  circumstances  of  the  case,  a  right  to  draw  ? 
Tliis  depends  upon  the  fact  whether  he  had  a  reasonable  ground 
to  expect  that  the  bill  would  be  honored,  or  not.  If  he  had 
such  reason  to  expect  it  to  be  honored,  he  is  entitled  to  a  regu- 
lar presentment,  and  notice  of  refusal  to  accept  to  pay  ;  and 
if  not  so  entitled,  he  cannot  complain  either  for  negligence  in 

{/)  Dorscy,  J.,  Eichclberger  v.  Finlcy,  7  Harris  &  J.  381,  who,  after  referring  to  the 
discrepancy  in  the  reasons  as  given  by  the  English  judges,  and  stating  that  the  cases  of 
Legge  ».  Thorpe,  12  East,  171,  2  Camp.  310,  and  Chiridgc  v.  Dalton,  4  Maule  &  S.  226, 
are  inconsistent  with  the  reason  of  fraud,  as  "  the  conduct  of  the  defendants,  in  those 
cases,  is  free  from  the  slightest  imputation  of  fraud,"  continues  :  "  The  true  rationale 
of  the  rule  introduced  in  Bickerdike  v.  Bollman  is  that  given  by  Bailer,  J.,  '  that  the 
drawer  could  not  bo  injured  by  the  want  of  notice.'  Why  not  injured  by  the  want  of 
notice  1  Because  the  object  of  notice  is  to  let  the  drawer  know  that  his  bill  has  been 
dishonored,  and  this  he  already  knew  from  the  nature  of  the  circumstances  connected 
with  it.  To  require  a  party  to  be  notified  of  a  fact  of  which  he  has  already  a  perfect 
knowledge  does  appear  to  be  a  solecism  not  at  all  in  harmony  with  the  beautiful  system 
of  reasoning  and  good  sense  which  pervades  every  branch  of  legal  science.  The 
many  distinguished  judges  who  have  disapproved  of  this  rule,  in  expressing  their  re- 
grets at  its  introduction,  correctly  state  it  to  be  '  the  substitution  of  knowledge  for  notice ' ; 
and  yet,  when  called  upon  to  apply  the  principle  to  the  facts  in  each  particular  case, 
such  has  been  the  anxiety  to  limit  the  extent  of  its  application,  such  the  desire  to  in- 
graft upon  it  restrictions  and  discriminations  by  which  future  cases  may  evade  its 
operation,  that  in  subtilties  and  refinements  the  essence  and  meaning  of  the  rule  has 
been  almost  wholly  lost  sight  of  Of  this,  the  case  of  Orr  v.  Maginnis,  7  East,  359,  is 
a  memorable  illustration."  We  doubt  whether  the  true  reason  is  here  stated.  The 
drawer  cannot  certainly  know  that  the  bill  may  be  dishonored,  for  some  one  might  ac- 
cept for  his  honor,  or  for  that  of  the  drawee.  This  is  as  good  a  reason  as  that  given  for 
not  considering  the  holder  excused  from  making  a  due  presentment  where  the  indorser 
was  aware  when  he  put  his  name  upon  a  note  that  the  maker  was  hopelessly  insolvent: 
which  is,  as  we  have  already  seen,  that  some  of  his  friends  may  provide  him  with  the 
means  to  take  up  the  note.  Also,  because  it  is  well  settled,  as  will  appear  hereafter, 
that  knowledge  of  dishonor  not  obtained  by  a  party  who  has  a  right  to  give  notice  is 
not  equivalent  to  notice.  It  is  also  doubtful  whether  the  absence  of  any  possibility  of 
injury  is  the  proper  reason.  Because,  according  to  what  would  seem  to  be  the  opinions 
of  some  judges,  even  if  a  drawer,  without  funds,  who  has  no  reason  nor  right  to  expect 
that  the  bill  will  be  honored,  can  prove  actual  injury,  he  may  be  discharged  by  neglect 
in  making  demand  and  in  giving  notice  ;  which  could  not  l)e  true  unless  there  was  still 
some  possibility  of  injury.  But  what  we  consider  to  be  the  reason  for  objecting  to  the 
doctrine  laid  down  here  is,  that  we  doubt,  as  will  presently  appear,  whether  the  fact 
fhat  the  drawer  has  been  injured,  under  such  circumstances,  would  avail  him. 


530  NOTES   AND   BILLS.  [CH.  Xm. 

presenting   and  in  forwarding  notice,  or  for  an   entire    neglect 
to  do  either. (w) 

The  "  reasonable  groun.ds  "  required  by  law  are  not  such  as  would 
excite  an  idle  hope,  a  wild  expectation,  or  a  remote  probability, 


(ill)  In  French  v.  Bank  of  Columbia,  4  Crancli,  141,  Marshall,  C.  J.  said  :  "  Notice 
must  immediately  i)c  given  to  the  drawer  that  his  bill  is  dishonored  by  the  drawee, 
because  he  is  presumed  to  have  effects  in  the  hands  of  the  drawee,  in  consequence 
of  which  the  drawee  ought  to  pay  the  bill,  and  that  he  may  sustain  an  injury  by  act- 
ing on  the  presumption  that  the  bill  is  actually  paid.  The  law  requires  this  notice, 
not  merely  as  an  indemnity  against  actual  injury,  but  as  a  security  against  a  jiossible 
injury,  which  may  result  from  the  laches  of  the  holder  of  the  bill.  To  this  security, 
then,  it  would  seem  tiie  drawer  ought  to  remain  entitled,  unless  his  case  be  such  as 
to  take  him  out  of  the  reason  of  the  rule.  A  drawer  who  has  no  effects  in  the  iiands 
of  the  drawee  is  said  to  be  without  the  reason  of  the  rule,  and  therefore  to  form  an 
exce|)tion  to  it.  This  has  been  laid  down  in  the  books  as  a  positive  qualification 
of  the  rule,  but  has  seldom  been  so  laid  down,  except  in  cases  wliere,  in  point  of 
fact,  the  drawer  had  no  right  to  expect  that  his  bill  would  be  honored,  and  could 
sustain  no  injury  by  the  neglect  of  the  holder  to  give  notice  of  its  being  dishon- 
ored. In  reason,  it  would  seem  that  in  such  cases  only  can  the  exception  be  ad- 
mitted, and  that  the  necessity  of  notice  ought  to  be  dispensed  with  only  in  those 
cases  where  tiotice  must  be  unnecessary  or  immaterial  to  the  drawer.  The  reason- 
ing of  the  judges  in  most  of  the  cases  which  have  been  cited  would  seem  to  warrant 
this  restriction  of  the  exception.  Tiie  case  of  Bickerdike  v.  Bollman,  1  T.  R.  405, 
was  a  bill  drawn  by  a  debtor  on  his  creditor,  without  a  single  accompanying  cir- 
cumstance which  could  raise  an  expectation  that  the  bill  would  be  accepted  or 
paid.  Notice  in  this  case  was  declared  to  be  unnecessary.  Justice  Aslihurst  gives  as 
a  reason  for  this  opinion,  that  the  drawing  was  in  itself  a  fraud.  This  reason  must  be 
considered  as  additional  to  the  general  ground  on  which  the  case  was  placed  in  the 
argument,  which  was,  that  the  want  of  notice  could  not  possibly  affect  the  drawer. 
The  particular  reason  given  by  Justice  Ashhurst  for  his  opinion  is  clearly  inapjdica- 
ble  to  any  case  in  which  the  drawer  was  justified  in  drawing.  In  the  opinion  of  Jus- 
tice Buller,  some  general  reasoning  is  introduced,  from  which  it  is  fairly  dcducible 
that  he  considered  the  drawer  as  having  no  rigiit  to  exj)ect  that  the  bill  would  bo 
paid,  and  as  being  liable  to  no  injury  from  the  want  of  notice,  and  that  these  were 
tiie  true  grounds  of  the  exception."  Afier  reviewing  the  cases  of  Goodall  v.  Dollcv, 
1  T.  R.  712,  and  Rogers  v.  Stevens,  2  id.  713,  and  stating  that  tlie  reason  given  by 
Lord  Kenyon  in  tlie  latter  was  "because  the  drawer  nuisf  know  tliat  he  had  no  right  to 
draw  on  the  drawee,"  the  learned  judge  continues  :  "  It  would  seem  to  be  tlie  fair  con- 
struction of  these  cases,  that  a  person  having  a  right  to  draw  in  consequence  of  engagc- 
mcnt.s  between  himself  and  the  drawee,  or  in  conseciuence  of  consignments  made  to 
the  drawee,  or  from  any  other  cause,  ought  to  be  considered  as  drawing  upon  funds  in 
the  hands  of  the  drawee,  and  therefore  as  not  coming  within  the  exccjition  to  the  gen- 
eral rule.  The  transaction  cannot  be  denominated  a  fraud,  for  in  such  case  it  is 
a  fair  commercial  transaction.  Neither  can  it  be  truly  said  that  he  had  no  right 
to  expect  his  bill  would  be  paid,  for  a  ficrson  authorized  to  draw  must  expect  his 
draft  will  be  honored.  Neither  can  it  be  said  tliat  he  has  virtual  notice  of  the  j)rotcst, 
and  that  actual  notice  is  useless,  and  the  want  of  it  can  do  him  no  injury;  for  this  is 
only  true  when  at  the  time  of  drawing  the  drawer  has  no  reason  to  expect  that  his  bili 
will  Ik;  paid.     A  person  having  a  right  to  draw,  and  a  fair  right  to  cxi)ect  that  1  is  bili 


CH.  Xffl.]  EXCUSES   FOR   WANT   OF   NOTICE.  537 

that  the  bill  might  be  honored ;  but  such  as  create  a  full  expec 
tation,  and  a  strong  probability,  of  its  payment ;  such,  indeed,  as 
would  induce  a  merchant  of  common  prudence,  and  ordinary 


will  be  honored,  would  not  come  within  the  reason  of  the  exception,  and  tlierefore,  it 
may  well  be  contended,  ought  not  to  be  brought  within  the  exception  itself."  The 
following  cases,  as  to  presentment,  support  the  view  that  want  of  funds  and  absence  of 
reasonable  grounds  to  expect  the  honor  of  the  bill  constitute  an  excuse.  Terry  v.  Par- 
ker, 6  A.  &  E.  502,  1  Nev.  &  P.  752,  where  the  drawer  was  held,  though  presentment 
was  not  made  to  the  drawee  till  two  days  after  maturity.  The  bill  was  payable  six 
months  from  date,  and  the  presentment  for  acceptance  and  payment  imd  jjrobably  be- 
come merged.  Parsons,  C.  J.,  Bond  v.  Farnham,  5  Mass.  171  ;  Kinsley  v.  Robinson, 
21  Pick.  327,  where  the  bill  liad  been  acce])ted,  and  a  presentment  ten  days  after  matu- 
rity was  excused  ;  Coiven,  J.,  Ilarker  v.  Anderson,  21  Wend.  372.  See  Franklin  r. 
Vanderpool,  1  Hall,  78.  In  Dollfus  v.  Frosch,  1  Denio,  367,  presentment  for  pay- 
ment was  made  three  days  before  maturity,  and  the  drawer  was  held.  The  bill  was 
"non-acceptable."  In  Mol)ley  ».  Clark,  28  Barb.  390,  the  drawer  of  a  bill  which  had 
been  duly  presented  for  acceptance  and  accepted  was  held,  although  there  was  no  pre- 
sentment for  payment.  See  Wood  v.  Gibbs,  35  Miss.  559,  where  a  neglect  to  present 
a  sight  bill  within  a  reasonable  time  was  excused.  The  evidence  of  want  of  funds  in 
this  ease  was  an  admission  of  the  fact  by  the  drawer.  See  Adams  v.  Darby,  28  Misso. 
162.  But  Radcliff)  J.,  in  Cruger  v.  Armstrong,  3  Johns.  Cas.  5,  said:  "The  want 
of  funds  may  excuse  the  want  of  notice  of  the  non-payment,  but  it  cannot  be  a  reason 
to  dispense  with  the  presentment,  or  demand  of  payment.  The  drawee  without  funds 
might  have  paid  it  for  the  honor  of  the  drawer."  The  same  was  held  in  English  v. 
Wall,  12  Rob.  La.  132,  where  the  bill  was  protested  prematurely,  and  the  drawer  was 
discharged.  In  the  following  cases  the  same  rule  was  applied  as  regards  notice  of 
non-acceptance,  there  being  no  difference  between  the  case  of  laches  in  giving  notice, 
and  that  where  no  notice  is  given.  Dickins  v.  Beal,  10  Pet.  572;  Baker  u.  Gallagher, 
1  Wash.  C.  C.  461  ;  Read  v.  Wilkinson,  2  id.  514  ;  Warder  v.  Tucker,  7  Mass.  449. 
See  Stanton  v.  Blossom,  14  id.  116;  Van  Wart  v.  Smith,  1  Wend.  219;  Cowen,  J., 
Commercial  Biink  v.  Hughes,  17  id.  94,  97;  Wollenweber  v.  Ketterlinus,  17  Penn. 
State,  389  ;  Cathell  v.  Goodwin,  1  Harris  &  G.  468  ;  Eichelberger  v.  Finley,  7  Harris 
&  J.  381  ;  Oliver  i-.  Bank  of  Tennessee,  11  Humph.  74  ;  Porte);  J.,  Hill  v.  Martin, 
12  Mart.  La.  177;  Benoist  v.  Creditors,  18  La.  522;  Anderson  v.  Folgcr,  11  La. 
Ann.  269;  Whaley  v.  Houston,  12  id.  585;  Ralston  u.  Bullitts,  3Bibb,  261  ;  Farm- 
ers' Bank  v.  Vanmeter,  4  liand.  Va.  553;  Hubble  v.  Fogartie,  3  Rich.  413;  Dur- 
rum  V  Hendrick,  4  Texas,  495.  In  the  following  cases  the  rule  was  applied  with  re- 
spect to  notice  of  non-payment.  Rhett  v.  Poe,  2  How.  457  ;  Hopkirk  v.  Page,  2 
Brock.  20;  Valk  v.  Simmons,  4  Mason,  113;  Allen  v.  King,  4  McLean,  128.  See 
Savage  v.  Merle,  5  Pick.  83  ;  Hoffman  v.  Smith,  1  Caines,  157  ;  liadcUff,  J.,  Cruger  r. 
Armstrong,  3  Johns.  Cas.  5  ;  Cowen,  J.,  Commercial  Bank  v.  Hughes,  17  Wend.  94  ; 
Dollfus  V.  Frosch,  1  Denio,  367  ;  Mobley  v.  Clark,  28  Barb.  390 ;  Case  v.  Morris, 
31  Penn.  State.  100;  Archer,  J,  Clopper  v.  Union  Bank,  7  Harris  &  J.  92,  102; 
Bloodgood  V.  Hawthorn,  9  La.  124;  Benoist  v.  Creditors,  18  id.  522;  Williams  r. 
Brashear,  19  id.  370,  16  id.  77;  English  v.  Wall,  12  Rob.  La.  132;  Gillespie  v. 
Cammack,  3  La.  Ann.  248  ;  AVhalcy  v.  Houston,  12  id.  585  ;  Blankensbip  ?•.  Rogers, 
10  Ind.  333  ;  Miser  v.  Trovinger,  7  Ohio  State,  281  ;  Oliver  v.  Bank  of  Tennes- 
see, 11  Humph.  74;  Spear  v.  Atkinson,  1  Ired.  262;  Cook  v.  Martin,  5  Smedcs  &  M. 
«/79  ;  Armstrong  v   Gay,  1  Stew.  Ala.  175  ;  Yongue  v.  Ruff,  3  Strob.  L.  31 1  ;  Boulager 


638  NOTES   AND   BILLS.  [CH.  Xffl. 

regard  foi'  his  commercial  credit,  to  draw  a  like  bill.('/i)  The  rea- 
sonableness of  the  expectation  has  been  held  to  be  ordinarily  a 
.question  of  law ;  but  when  the  proof  is  contradictory,  and  the 
facts  equivocal  or  contradictory,  it  is  a  mixed  question  of  law 
and  fact.(o)     To  apply  this  rule,  the  drawer  may  have  a  right  to 

r.  Talleyrand,  2  Esp.  550 ;  Lord  EUenborough,  Rucker  v.  Hiller,  1 6  East,  43,  3  Camp. 
217  ;  Brown  v.  Maffey,  15  East,  216;  Claridge  v.  Dalton,  4  Maule  &  S.  226.  See 
the  cases  cited,  supra,  p.  533,  note  g. 

In  the  following  cases  no  protest  was  held  necessary.  Benoist  v.  Creditors,  1 8  La.  522 ; 
Legge  V.  Thorpe,  12  East,  171,  2  Camp.  310.  But  this  last  case  may  perhaps  be  in 
opposition  to  the  doctrine  of  the  text,  that  the  right  to  demand  and  notice  depends  upon 
the  reasonableness  of  the  expectation  that  the  bill  will  be  honored  The  circumstances 
of  the  case  were  as  follows  :  The  bill  was  drawn  in  favor  of  the  payee,  because  the 
drawer  had,  at  the  request  of  the  drawees,  who  were  executors,  employed  tlie  payee 
to  do  some  carpenter's  work  on  a  building  which  the  drawer  had  rented  of  the  deceased 
before  his  death,  under  an  agreement  that  the  rent  reserved  was  to  be  laid  out  in  cer- 
tain improvements  on  the  premises,  the  value  of  which  had  amounted  to  more  tlian  the 
rent.  The  bill  was  drawn  in  expectation  that  the  executor  would  pay,  he  having  assets. 
Lord  EUenborough,  C.  J.  said,  12  East,  175  :  "  The  fact  is,  that  the  drawer  was  not  alto- 
gether unwarranted,  under  the  circumstances,  in  expecting  tliat  his  bill  might  be  honored, 
so  that  there  is  no  imputation  upon  him  for  having  drawn  the  bill."  This  case  may, 
however,  be  explained  by  the  fact  that  the  improvements  agreed  to  be  made  by  the 
drawer  in  lieu  of  paying  rent  covered  the  expenses  incurred  on  the  building,  on  account 
of  which  the  bill  was  drawn,  that  is,  that  the  carpenter's  work  on  the  building  was  part 
of  the  improvements  which  the  drawer  agreed  to  make.  This  fact  does  not  appear 
clearly  from  the  case,  as  reported  in  East,  from  which  we  have  taken  the  above  cir- 
cumstances. In  the  report  in  Campbell,  all  that  appears  is  the  foct  tiiat  the  drawee 
testified  that  he  had  no  funds  of  the  drawer,  and  that  the  latter  had  no  right  to 
expect  that,  upon  any  consideration,  the  bill  would  be  accepted  and  paid.  It  may 
perhaps  be  that  the  drawer  acted  as  the  drawee's  agent,  and  no  notice  was  con- 
sidered necessary,  it  being  a  bill  drawn  by  a  party  ujion  himself.  In  Foard  v.  Wo- 
mack,  2  Ala.  368,  entire  absence  of  funds,  independent  of  the  question  of  reasonable 
expectation,  was  held  to  be  the  test.  See  Tarver  v.  Nance,  5  id.  712  ;  Hill  v.  Norris,  2 
Stew.  &  P.  114. 

(n)  Dorspy,  J.,  Cathell  v.  Goodwin,  I  Harris  &  G.  468,  471  ;  Archer,  J.,  Orear  e. 
McDonald,  9  Gill,  350,  357.  In  Armstrong  v.  Gay,  I  Stew.  Ala.  175,  there  seems 
to  have  been  a  chance  that  the  drawee  would  have  accepted  and  j)aid,  but  there 
was  no  sufficient  ground  for  the  drawer  to  expect  it. 

(o)  Cathell  i\  Goodwin,  1  Harris  &  G.  468  ;  Oroar  i-.  McDonald,  9  Gill,  350 ; 
Wollcnwcbcr  v.  Ketterlinus,  17  Penn.  State,  389.  In  this  case  the  draft  was  drawn 
on  an  agent  whose  ])rincipal  was  to  receive  a  sum  of  money  by  contract  for  fur- 
nishing a  certain  quantity  of  maps  within  a  specified  time.  The  drawer,  knowing 
the  terms  of  the  contract,  agreed  to  perform  a  part  of  the  work  on  the  maps,  but 
after  considerable  delay,  finding  himself  unable  to  do  the  work,  got  the  payee  to  do  it, 
and  drew  the  draft  in  his  favor.  Owing  to  the  drawer's  delay,  the  maps  were  not  com- 
pleted in  time,  and  the  principal  was  not  entitled  to  receive  any  money  under  the  con- 
tract. The  draft  was  drawn  for  a  greater  sum  than  the  agent  was  to  receive.  The 
judge  charged  that  tliesc  facts,  if  believed,  constituted  an  excuse  for  want  of  not>« 
of  non-accej)tancc  to  the  drawer.     Held  correct. 


CH.  XIII.]  EXCUSES   FOR  WANT   OF  NOTICE.  539 

expect  that  the  bill  will  be  honored,  when  there  is  a  fluctuating 
balance  between  him  and  the  drawee,  although  the  balance  may 
be  against  the  former  at  the  time  presentment  was  raade,(;?)  or 
where  there  are  open  accounts  between  the  parties. (7) 

But  we  do  not  think  that  presentment  and  notice  would  be  ne- 
cessary if  it  were  proved  that  the  drawer  knew  the  state  of  the  ac- 
count when  he  drew,  and  made  no  provision  for  the  honor  of  the 
bill  before  the  time  when  it  should  in  the  regular  course  be  pre- 
sented ;  (r)  because  the  evidence  of  open  accounts  and  fluctuating 
balances  would  seem  to  be  proof  of  a  right  to  expect  the  honor 
of  the  bill,  which  might  be  rebutted  by  counter-proof  of  there 
being  no  reasonable  grounds  upon  which  to  found  such  expecta- 
tion. The  same  rule  would  also  be  applicable  where,  although 
there  were  open  accounts  between  drawer  and  drawee,  the  ac- 
counts were  in  litigation,  and  that  fact  was  known  to  the  drawer 
at  the  time  of  drawing,  (i')  So  also  when  consignments  were 
made,  but  with  an  understanding  that  the  bills  were  not  to  be 
accepted  until  after  a  certain  period,  and  the  bill  was  due  prior  to 

{/))  Blackhan  v.  Doren,  2  Camp.  503,  where  the  bill  was  for  £  250.  The  drawer 
had  £  1,500  in  the  hands  of  the  drawee,  but  owed  him  £  10,000,  which  the  latter  had 
appropriated.  Notice  was  held  necessary.  If  these  were  all  the  facts  in  the  case,  we 
should  doubt  the  propriety  of  the  decision.  Lord  Ellenhorouyh,  C.  J.,  Brown  v.  MafFey, 
15  East,  216.  See  Bagnall  v.  Andrews,  7  Bing.  217  ;  Orear  v.  McDonald,  9  Gill,  350 ; 
Baldwin,  J,,  Dickins  v.  Beal,  10  Pet.  572,  577;  Richardson,  J.,  Sutcliife  v.  M'Dowell, 
2  Nott  &  McC.  251,  256. 

(7)  Hopkirk  v.  Page,  2  Brock.  20;  Robinson  ik  Ames,  20  Johns.  146;  Williams  r. 
Brashear,  19  La.  370,  16  id.  77.  See  New  Orleans  Bank  v.  Harper,  12  Rob.  La.  231,  233  ; 
Hill  V.  Norris,  2  Stew.  &  P.  114;  Baldwin,  J.,  Dickins  v.  Beal,  10  Pet.  572,  577  ;  Frost, 
J.,  Yongue  i'.  Ruff,  3  Strob.  311  ;  Richardson,  J.,  Adams  v.  Darby,  28  Misso.  162. 

(r)  In  Hopkirk  v.  Page,  2  Brock,  20,  there  had  been  several  transactions  prior  to  the 
time  of  drawing  the  bill  between  the  drawer  and  the  drawees.  The  drawees  had  acted 
as  agents  of  the  drawer  in  effecting  the  sale  of  an  estate,  and  the  sale  of  several  con- 
signments of  tobacco.  There  was  a  mortgage  on  the  estate  sold,  for  which  the  vendee 
retained  a  considerable  sum  of  money  in  iiis  hands,  and  for  which  no  claimant  had  for 
a  long  time  appeared.  There  had  been  prior  bills  of  the  drawer  on  the  drawees  pro- 
tested. For  some  time  prior  to  drawing  the  bill  in  suit  there  had  been  no  consignment 
of  tobacco,  and  a  letter  from  the  drawer  had  been  received  by  the  drawee  stating  that  it 
was  feared  that  the  representative  of  the  mortgagee  had  been  found,  and  that  little  could 
be  expected  therefrom,  and  it  concluded  by  saying,  that,  as  to  "  paying  any  more,  or 
raising  money  on  the  uncertainty  of  the  mortgage,  we  shall  not  attempt."  There  was 
a  small  balance  due  the  drawee  at  the  time  the  bill  was  drawn.  Want  of  notice  of 
con-payment  was  excused.  So  in  Dollfus  v.  Frosch,  1  Denio,  367,  there  was  an  open 
account  between  the  drawer  and  drawee,  and  the  drawer  was  charged,  although  pre- 
sentment was  made  three  days  before  maturity  and  no  notice  given. 

(s)  Dollfus  V.  Frosch,  1  Denio,  367.     See  Benoist  v.  Creditors,  18  La.  522. 


540  NOTES  AND    BILLS.  [CH.  XIIL 

that  time,  these  facts  would  constitute  a  sufficient  excuse  for  want 
of  notice. (^) 

The  drawer  may  likewise  have  good  reason  to  believe  that  the 
bill  will  be  honored,  if  he  has  consigned  goods  to  the  drawee, (m) 
although  the  consignment  may,  by  accident  or  otherwise,  not  have 
come  into  the  possession  of  the  drawee, (y)  or  may,  by  deprecia- 
tion in  value  or  other  loss,  have  become  insufficient  to  cover  the 
amount  of  the  bill.(2y) 


(t)  Claridge  v.  Dalton,  4  Maiile  &  S.  226,  where  the  drawer  had  been  in  the  liabit  of 
supplying  the  drawee  with  goods,  and  the  latter  to  accept  bills  drawn  on  them,  at  the 
end  of  the  year.  At  tlie  time  of  drawing,  the  drawer  had  received  an  order  for  goods, 
and  had  forwarded  them  to  the  drawee,  to  the  value  of  £270.  The  bill  was  for  £300, 
and  due  Sept.  1.  Notice  was  not  given  within  due  time,  but  the  drawer  was  held. 
Lord  EUenborough,  C.  J.,  said  :  "  I  accede  to  the  proposition,  that  v/herc  there  are  any 
funds  in  the  hands  of  the  drawee,  so  that  the  drawer  has  a  right  to  expect,  or  even  whei-e 
there  are  not  any  funds,  if  the  bill  be  drawn  under  such  circumstances  as  may  induce 
the  drawer  to  entertain  a  reasonable  expectation  that  the  bill  will  be  accepted  and  paid, 
the  person  so  drawing  it  is  entitled  to  notice.  The  question,  therefore,  is,  whether  in 
this  instance  there  were  any  funds  in  hand  at  the  time  of  drawing  applicable  to  this 
bill,  or  a  ground  of  reasonable  expectation  that  when  the  bill  became  due  the  drawee 
would  come  forward  and  pay  it.  As  to  funds,  though  tliere  were  goods  of  the  defendant 
in  the  drawee's  hands  at  the  time  of  drawing,  yet  they  were  not  such  as  could  be  prop- 
erly set  against  the  drawing.  And  as  to  any  reasonable  expectation  that  the  Kill  would 
be  paid,  it  was  neither  accepted,  nor  had  the  defendant  any  claim  upon  the  drawee  to 
have  it  honored,  according  to  the  due  course  of  credit  between  them,  until  tlie  end  of 
the  year.  At  that  time  he  would  have  been  entitled  to  draw,  whereas  this  hill,  which 
is  at  two  months,  became  due  on  the  1st  of  September;  it  was  drawn,  therefore,  in 
anticipation  of  his  credit,  and  without  any  assurance  of  accommodation.  For  if  there 
never  was  any  drawing  between  the  parties  but  at  the  end  of  the  year,  or  accepting  of 
bills,  how  shall  we  say  that  the  defendant  was  authorized  to  entertain  a  reasonable  ex- 
pectation that  this  bill  would  be  honored  ?  And  if  not,  this  falls  within  the  rule  laid 
down  in  Bickerdike  v.  Bollman,  and  notice  was  not  necessary." 

(«)  Hopkirk  v.  Page,  2  Brock.  20  ;  Orcar  v.  IMcDonald,  9  Gill,  3.50,  where  a  bill 
was  drawn  for  .S.'J,000,  by  authority  of  the  drawee.  The  drawer  advised  tlie  drawee  of 
a  consignment  to  meet  it,  and  the  latter  accepted.  The  consignment  subsequently  re- 
ceived brought  $  7,000.  Other  drafts  had  been  drawn  and  accepted,  and  other  consign- 
ments made,  but  at  the  maturity  of  the  bill  the  acceptors  had  not  sufficient  funds  to 
take  it  up,  after  payment  of  drafts  subsequently  drawn  and  accepted.  A  presentment 
two  days  after  maturity  was  not  excused.  See  New  Orleans  Bank  v.  Harper,  12 
Rob.  La.  231  ;  Lacoste  v.  Harper,  3  La.  Ann.  385  ;  Grosvcnor  v.  Stone,  8  Pick.  79 ; 
Bnldwhi,  J.,  Dickins  v.  Bcal,  10  Pet.  572,  577  ;  Frost,  J.,  Yongue  v.  liuff,  3  Strob.31 1  , 
Lord  Ellpiibnrouf/h,  C.  J.,  Lcgge  r.  Thorpe,  2  Camp.  310. 

{v)  Sec  Ruckcr  v.  Hillcr,  16  East,  43,  infra,  note  w.  Ei/re,  C.  J.,  Wahvyn  r.  St. 
Quintin,  1  1V)S.  &  P.  6.52,  656  ;  Lord  FJlcnboronqh,  C.  J.,  Lcgge  v.  Thorpe,  12  East 
171,  175,  Oliver  v.  Bunk  of  Tennessee,  11  Hiimj)!!.  74  ;  JMdwin,  J.,  Dickins  v.  BenI, 
10  Pet.  572,  577  ;  Richardson,  J.,  Siitclifle  v.  M'Dowell,  2  Nott  &  McC.  251,  256;  Ed 
wards  r.  Moses,  i<l.  433. 

(w)   Kucker  i;.  lliller, 3  Camp.  217,  IG  East,  43,  where  the  ship  conveying  the  cMisi^n- 


CH.  XIII.]  EXCUSES   FOR   WANT    OF   NOTICE.  541 

So  the  drawer  may  have  good  reason,  in  some  cases,  to  expect 
that  a  third  party  will  provide  the  drawee  with  funds  with  which 
to  take  up  the  bill, (a;) 

He  has  a  right  also  to  expect  that  the  bill  will  be  lionorcd 
when  the  drawee  has  given  him  express  autliority  to  draw,(?/) 
provided  the  bill  be  drawn  within  the  due  limits  of  the 
authority ;  (2)    or   where  the   bill   is    drawn    under  an    engage- 


ment had  been  detained,  and  the  cargo  so  depreciated  in  value  that  it  was  hardly 
sufficient  to  pay  the  freight.  Notice  of  non-acceptance  was  held  necessary.  In  Kohins 
V.  Gibson,  3  Camp.  .334,  the  hill  was  drawn  on  a  consignment  of  hides  and  indigo. 
Before  presentment  for  payment,  the  hides  had  been  sold  at  a  loss,  and  the  indigo 
remained  unsold.  Notice  of  non-payment  was  held  necessary.  This  is  the  state  of  tiic 
case,  as  appears  from  the  report  in  Campbell.  By  the  report  in  East,  at  the  time  of 
presentment,  the  cargo  was  on  the  way  to  the  drawee,  who  had  received  neither  bill  of 
lading  nor  invoice,  in  consequence  of  which  the  refusal  to  accept  was  made.  In  Rob- 
inson V.  Ames,  20  Johns.  146,  the  drawee  had  received  considerable  shipments  of  cotton 
from  the  drawer,  and  accepted  other  bills;  but  on  account  of  a  fall  in  the  price  of 
cotton,  the  value  of  the  consignments  was  not  equal  to  the  amount  of  the  accepted  bills 
and  the  Viill  in  suit.  Notice  of  non-acceptance  of  the  bill  was  held  necessary.  In  Wil- 
liams V.  Brashear,  19  La.  370,  16  id.  77,  the  bill  was  drawn  on  molasses  purchased  by 
the  drawee  of  the  drawer,  and  the  molasses  had  become  lost  by  rain.  The  bill  had 
been  accepted.     Notice  of  non-payment  was  held  necessary. 

(:r)  Lafitte  v.  Slatter,  6  Bing.  623,  4  Moore  &  P.  457,  where  the  acceptor  accepted  at 
the  request  of  a  third  party,  who  promised  to  take  up  the  bill.  Demand  was  made  a 
fortnight  after  maturity,  and  no  notice  given.  The  drawer  was  discharged.  In  French  v. 
Bank  of  Columbia,  4  Cranch,  141,  Marshall,  C.  J.,  after  stating  the  rule  with  respect  to 
want  of  funds,  said  :  "  This  point  came  on  again  to  be  considered  in  the  case  of  Rogers 
V.  Stevens,  2  T.  R.  713,  in  which,  as  between  the  drawer  and  drawee,  there  was  no 
pretext  of  a  right  to  draw.  It  was  said  that  a  third  person  had  stated  himself  to  have 
funds  in  the  hands  of  the  drawee,  that  the  bill  was  really  drawn  on  the  credit  of  those 
funds,  and  that  loss  had  been  actually  sustained  from  the  want  of  notice.  But  these 
facts  formed  no  part  of  the  case.  If  they  had,  it  is  apparent  that,  in  the  opinions  of 
Lord  Kenyon  and  Justice  Grose,  they  would  have  been  decisive  in  favor  of  the  neces- 
sity of  notice,  unless  that  necessity  had  been  dispensed  with  by  the  subsequent  conduct 
of  the  drawer."  In  Walwyn  v.  St.  Quintin,  2  Esp.  515,  the  jury,  under  the  direction 
of  Eyre,  C.  J.,  decided  that  where  the  indorser  had  supplied  the  drawee  with  effects, 
due  notice  of  non-acceptance  must  be  given  to  the  drawer.  The  case  was,  however, 
overruled  by  the  full  court,  in  1  Bos.  &  P.  652,  but  this  latter  case  has  virtually 
been  overruled  by  Scott  v.  Lifford,  1  Camp.  246,  9  East,  347 ;  Cory  v.  Scott,  3  B.  & 
Aid.  619. 

(y)  Austin  v.  Rodman,  1  Hawks,  194,  where  a  written  authority  was  held  to  be  a 
sufficient  ground  for  drawing.     See  Bloodgood  v.  Hawthorn,  9  La.  124. 

(?)  In  Dickins  v.  Beal,  10  Pet.  572.  In  this  case  the  drawers  had  no  funds  in  the 
hands  of  the  drawees,  nor  had  they  made  any  consignments.  Dickins  and  Taylor 
were  partners,  doing  business  at  Hazehvood,  Tenn.,  and  drew  two  bills  in  favor  of 
Beal,  in  payment  of  an  antecedent  debt  due  the  latter  by  tiie  drawers.  The  following 
letters  to  the  cashier  of  the  Branch  Bank  at  Nashville  were  offered  in  evidence,  and 
refused.     "  Messrs.  Dickins  and  Taylor  are  authorized.  In  making  myotiatlons,  to  value 

V^L.  I.  46 


542  NOTES   AND   BILLS.  [CH.  XHI. 

ment  between  drawer  and  drawee ;  (a)  or,  perhaps,  where  the 
drawee  has  been  in  the  habit  of  accepting  independently  of  the 
state  of  accounts  between  them ;  (6)  or  where  the  drawee  had 


itn  our  house  in  New  Orleans,  for  say  $  10,000,  in  such  form  and  at  such  time  as  they 
may  think  proper,  and  the  same  will  be  duly  honored."  "Our  friend  Colonel  S. 
Dickins  is  authorized,  in  negotiating  with  your  institution,  to  value  on  our  house  in  New 
Orleans,  at  any  time,  for  such  sums  as  he  may  think  proper,  and  same  will  be  duly 
honored."  The  drawer  was  held,  although  there  were  laches  in  giving  notice  of  non- 
acceptance.  Baldwin,  J.  said  :  "  It  is  clear  that  this  transaction  was  not  a  negotiation, 
within  the  meaning  or  intention  of  these  letters  ;  they  evidently  referred  to  negotiations 
at  the  bank,  or  within  the  sphere  of  its  operations  in  the  commercial  transactions  of  the 
firm;  the  one  referring  to  Dickins  alone  was  expressly  limited  to  negotiations  with 
that  bank.  The  remittance  of  these  bills  to  New  Orleans  in  payment  of  an  antecedent 
debt  to  the  plaintiff  was  in  no  sense  of  the  term  a  negotiation  of  them,  and  was  so 
utterly  inconsistent  with  the  evident  object  of  the  letters,  that  the  most  remote  expecta- 
tion could  not  have  been  entertained  that  they  would  have  been  accepted.  A  mer- 
cantile house  conducting  operations  at  Memphis  and  New  Orleans  would,  in  the  course 
of  their  business,  lend  their  credit  in  anticipation  of  consignments,  while  they  would 
refuse  it  to  pay  the  debts  due  to  other  persons,  these  considerations  could  not  escape 
the  consideration  of  Dickins  and  Taylor,  when  they  sought  to  make  Wilco.x  and 
Feron  their  creditor,  instead  of  Beal,  by  such  a  fraudulent  abuse  of  the  letters  of 
credit.  Had  these  bills  come  to  the  hands  of  an  innocent  holder  in  the  course  of  trade, 
with  a  knowledge  of  these  letters,  the  case  would  have  been  different ;  or  if  tlie  bank 
had  negotiated  them,  there  would  have  been  a  reasonable  expectation  that  the}'  would 
have  been  honored  ;  but  Dickins  and  Taylor  could  have  entertained  no  such  expecta- 
tion. The  letters  were,  therefore,  properly  excluded."  In  Orear  v.  McDonald,  9  Gill, 
350,  the  drawees  had  given  the  drawers  a  written  autiiority  to  draw,  and  one  bill  prior 
to  the  one  in  suit  appears  to  have  been  honored.  Martin,  J.  said  :  "It  is  true  that  this 
authority  was  limited  to  three  fourths  of  the  market  value  of  the  cargo  at  Now  Orleans. 
With  respect,  however,  to  the  first  draft,  tiiis  agreement  was  not  strictly  adhered  to ; 
and  the  argument  is,  we  think,  legitimate,  tliat  tiiis  fact  was  calculated  to  impress  upon 
the  minds  of  the  drawers  the  belief  tliat  the  drawees  would  deviate  from  the  strict 
letter  of  their  authority,  if  it  became  necessary  for  the  honor  of  tlie  bill." 

(a)  Marshall,  C.  J.,  French  v.  Bank  of  Columbia,  4  Cranch,  141  ;  Eijre,  C.  J.,  Wal- 
wyn  V  St.  Quintin,  1  Bos.  &  V.  652  ;  Shaw,  C.  J.,  Kinsley  v.  Robinson,  21  Pick.  327  ; 
Richardson,  J.,  Adams  v.  Darby,  28  Misso.  162.  A  drawer  witliout  funds,  whoso 
agreement  with  the  drawee  is  not  conclusively  shown  to  have  authorized  him  to  expect 
an  acceptance,  under  the  state  of  affairs  brought  about  by  the  mode  in  whicii  he  dis- 
posed of  Ills  draft,  is  not,  it  would  seem,  entitled  to  notice  of  non-acceptance  or  non- 
payment.    Whaley  v.  Houston,  12  La.  Ann.  585. 

{h)  Baldwin,  J.,  Dickins  v.  Beal,  10  Pet.  572,  577  ;  Frost,  J.,  Yonguc  v.  Ruff,  3 
Strob.  .31 1  ;  liichardson,  J.,  Adams  v.  Darby,  28  Misso.  162.  Contra,  Foard  j\  Womack, 
2  Ala.  .368,  where  the  defendant's  counsel  requested  the  court  to  instruct  iho  jury,  that 
if  the  drawees  were  in  the  hal)it  of  accepting  for  the  drawer,  and  the  latter  had  good 
reasons  to  believe  they  would  accept  the  bill,  he  was  eiitilled  to  notice  of  dishonor. 
The  request  was  refu-!cd,  the  court  telling  the  jury  that  a  want  of  funds  from  the  time 
of  drawing  to  maturity  constituted  an  excuse  for  want  of  notice.  The  jury  found  a 
verdict  for  the  plaintiff,  and  the  judgment  was  confirmed.  This  case  is  affirmed  \ii 
Tarvcr  v.  Nance,  5  Ala.  712. 


CH.  Xm.]  EXCUSES   FOR   WANT   OF   NOTICE.  543 

promised  to  accept ;  (c)  or  wliere  the  drawee  has  sufiicicnt  secu« 
rities  to  cover  the  amount  of  whatever  acceptance  ho  might 
make.  (6?) 

Where  the  drawee  has  funds  in  his  hands  at  the  time  the  bill^ 
was  drawn,  it  will  not  be  sufficient  to  defeat  tlie  right  of  the 
drawer  to  due  notice  of  non-acceptance,  to  show  that  the  effects 
were  attached  in  the  hands  of  the  drawee  prior  to  present- 
ment for  acceptance,  because  this  fact  will  not  show  absence  of 
a  right  to  expect  the  honor  of  the  bill.(e) 

Tlie  fact  that  the  drawee  owes  the  drawer  a  sum  of  money  as 
executor  has  been  held  not  to  give  the  drawer  such  a  right  to 


(c)  See  Orear  v.  McDonald,  9  Gill,  350.  But  the  mere  fact  of  an  acceptance  will 
not  show  a  right  to  expect  the  honor  of  the  bill,  where  absence  of  funds  for  the  debt  to 
the  time  of  presentment  for  payment  is  shown,  as  will  appear  infra,  p.  .544,  and  notes. 
We  should  say,  however,  quite  confidently,  that  a  promise  to  accept  will  render  notice 
of  non-acceptance  necessary. 

(d)  In  Spooner  v.  Gardiner,  Ryan  &  M.  84,  the  drawer  had  no  effects  in  the  hands 
of  the  acceptor  from  drawing  till  maturity,  but  the  acceptor  had  received  from  the 
drawer,  prior  to  the  bill,  several  acceptances  of  the  latter,  on  which  money  had  been 
raised  by  the  acceptor.  Some  of  the  acceptances  had  been  returned  dishonored,  and 
others  were  outstanding,  ten  of  which  last  were  for  a  greater  amount  than  that  of  the 
bill.  The  acceptances  were  accommodation  acceptances  for  the  drawer's  benefit.  The 
drawer  was  held  entitled  to  due  notice  of  non-payment.  See  Campbell  v.  Pettingill,  7 
Greenl.  126,  where  the  drawee,  a  treasurer  of  a  corporation,  accepted  to  pay  when  in 
funds  of  the  corporation.  The  acceptor  held  its  negotiable  securities  and  other  evi- 
dences of  debt,  to  the  amount  of  the  bill,  but  no  cash.  The  acceptor  owed  the  drawer 
a  small  sum.  An  opinion  was  expressed  that  notice  of  non-payment  was  necessary. 
In  "Van  Wart  v.  Smith,  I  Wend.  219,  227,  the  drawees  held  a  guaranty  of  a  third  party 
for  £  10,000,  to  secure  them  for  their  acceptance.  The  drawee  drew  a  bill  for  a  larger 
amount.  The  drawees  had  never  accepted  any  bill  beyond  that  value,  unless  secured 
by  other  securities.  There  was  no  security  for  the  bill  in  suit,  and  acceptance  was 
refused.  Laches  in  giving  due  notice  of  non-acceptance  were  excused.  In  Walwyn  v. 
St.  Quintin,  2  Esp.  515,  the  payee  had  lodged  title-deeds  of  a  house  belonging  to  hira 
with  the  drawee,  for  the  purpose  of  raising  money,  but  no  money  had  been  raised  at 
the  time  the  bill  was  payable.  Eyre,  C.  J.  left  it  to  the  jury  to  say  whether  this  consti- 
tuted effects  in  the  drawee's  hands,  and  the  jury  found  that  it  did.  It  seems  to  have 
been  so  considered  by  the  full  court  in  1  Bos.  &  P.  652.  In  Ex  parte  Heath,  2  Ves. 
&  B.  240,  Lord  Eldon,  after  regretting  the  decision  in  Bickerdike  v.  Bollman,  and 
the  difficulties  attendant  upon  it,  said,  with  reference  to  this  case  :  "  There  cannot  be 
a  stronger  instance  than  that,  in  the  case  referred  to,  Lord  Chief  Justice  Eyre,  a  very 
good  lawyer,  left  it  to  the  jury  to  decide,  without  any  solution  of  the  question,  whether 
title-deeds  are  effects  ;  but  a  rule  that  securities  cannot  be  effects  in  any  case  would  be 
quite  destructive  of  all  commercial  dealing.  Are  not  short  bills,  for  instance,  effects  ? 
Is  it  of  no  importance  to  the  holder  to  have  notice,  that  he  may  withdraw  them  from 
the  possession  of  the  acceptor?  " 

(e)  Stanton  r.  Blossom,  14  Mass.  116. 


544  NOTES   AND   BILLS.  [CH.  XIH. 

draw  in  liis  own  name  as  will  entitle  him  to  notice  of  non-pay- 
ment.(/) 

So  where  the  draft  was  drawn  on  funds  which  were  to  he  re- 
ceived under  a  contract,  but  which,  by  reason  of  the  neglect  of 
the  drawer,  or  his  failure  to  perform  certain  duties  required,  were 
not  due  under  the  contract,  the  drawer  being  aware  of  the  terms 
thereof,  no  notice  of  non-acceptance  was  held  necessary ;  be- 
cause the  drawer  had  no  reasonable  ground  to  expect  the  honor 
of  the  bill.(g')  Where  the  drawer  agreed  with  his  lessor  to  make 
certain  improvements  upon  an  estate  rented  by  him,  and  subse- 
quently hired  the  payee  to  perform  a  part  of  the  work,  and  then 
drew  upon  the  lessor's  executors  in  favor  of  the  payee,  to  whom 
the  draft  was  given  in  payment  for  the  work,  no  protest  for  non- 
acceptance  was  held  necessary. (/^) 

It  seems  to  have  been  held  that  the  mere  fact  of  acceptance  ifj 
sufiicient  proof  of  a  right  to  draw,  or  a  right  to  expect  that  the 
bill  would  be  honored,  although  the  drawer  may  have  had  no 
funds. (^)  But  this  cannot  always  be  true,  inasmucli  as  in  many 
cases  the  drawer  has  been  held  liable  without  due  presentment 
for  payment, (y)  or  notice  of  dishonor, (^■)  when  the  bill  was  ac- 
cepted. The  fact  of  acceptance  may  be  some  evidence  of  a  right 
to  draw  where  there  are  other  facts  tending  to  show  that  right, 

(/)  Yonijiic  V.  Ruff,  .3  Strob.  311. 

(</)   Wollenwcber  v.  Kittcrlinus,  17  Penn.  State,  389,  supra,  p.  .538,  note  o. 

(Ii)  Lc^'fre  V.  Tliorpe,  12  East,  171,  2  Camp.  310.  If  this  case  was  not  dooided  upon 
tlie  state  of  the  facts  as  given  in  the  text,  or  upon  the  ground  that  tlie  drawer  acted 
simply  as  tlie  drawee's  agent,  we  do  not  tliink  it  can  he  sujjported.  See  a  statement 
of  it,  siiiini,  p  535,  note  /.  Where  A,  being  indebted  to  B,  procured  C,  who  was  in- 
dci)ted  to  him,  to  draw  a  bill  in  his  favor  on  B,  wiiich  was  indorsed  over  to  B,  in  pay- 
ment of  the  d(.I)t  due  B  by  A,  it  was  held  that  C  was  not  entitled  to  notice,  no  funds 
having  been  provided.     Stewarts.  Desha,  11  Ala.  844. 

((')  Pons  V.  Kelly,  2  Ilayw.  45.  Sec  Richie  v.  McCoy,  13  Smcdcs  &  M  541,  where 
it  was  held  that  proof  of  the  want  of  effects  on  the  day  of  maturity  did  not  throw  upon 
the  defendant  the  burden  of  proving  that  he  liad  reasonable  grounds  to  believe  that  the 
bill  would  be  paid  on  presentment;  but  the  court  seems  to  adoj)!  the  view,  that  the  fact 
of  acceptance  is  sufficient  to  shift  the  presumption.  The  rule,  we  think,  is  this  :  If  tho 
drawer  liad  reasonable  grounds  to  expect  the  payment  of  the  bill,  on  presentment  for 
[)aymcnt,  he  is  entitled  to  notice,  and  perhaps  the  fact  of  want  of  funds  at  maturity  is 
tullicicnt,  prima  fade,  to  sliow  an  absence  of  reasonable  grounds. 

( /)  Kinsley  v.  Robinson,  21  Pick.  327  ;  Mobley  v.  Clark,  28  Barb.  390. 

(k)  Hoffman  v.  Smith,  1  Caines,  157,  where  it  is  said  by  Tlwmjtaoii,  J.,  "The  ac- 
ceptance by  the  drawee  made  no  alteration  in  the  rule";  Allen  v.  King,  4  McLean, 
128  ;  Valk  r.  Simmons,  4  Mason,  113  ;  Rlictt  v.  Poe,  2  How.  457.  In  these  last  tiro 
cases  the  funds  were  withdrawn.     Gillespie  v.  Canimack,  3  La.  Ann  24S. 


CII.  XIII.]  EXCUSES    FOR    WANT    OF   NOTICE.  54.5 

and  may  go  to  support  it ;  (/)  but  the  cases  above  cit.3d  are  au- 
thorities agaiust  the  view  that  the  acceptance  itself  is  sufficient 
proof  to  establish  the  right  to  draw,  and  to  rebut  the  ])rcsuniption 
of  the  absence  of  such  right,  arising  from  proof  of  absence  of 
effects  from  drawing  to  maturity,  or  a  withdrawal  of  them  before 
presentment  for  payment. 

It  has  been  held,  that  the  fact  that  the  drawer  and  acceptor  had 
no  funds  at  the  place  where  the  bill  was  (h-awn  payable,  and  no 
reasonable  expectation  of  having  any  there,  was  not  a  sufficient 
excuse  for  want  of  notice  to  the  drawer ;  (m)  because  the  drawer 
might  have  drawn  on  funds  which  the  acceptor  had  neglected  to 
place  in  the  bank. 

It  seems  to  have  been  held,  that  the  mere  fact  that  the  drawee 
has  some  funds,  however  small  in  amount  or  little  in  value,  will 


(/)  In  Campbell?;.  Pcttingill,  7  Grccnl.  126,  Weston,  J.  said:  "There  is  certainly 
ground  to  contend  that  the  defendants  had  reasonable  expectations  that  their  order 
would  be  accepted  [paid  ?].  of  which  its  actual  acceptance  and  partial  payment  might 
be  regarded  as  evidence."  In  this  case  the  question  was  whether  notice  of  non- 
payment was  necessary.  So  Martin,  J.,  in  Orear  v.  McDonald,  9  Gill,  3.50,  3.58,  said  : 
"  This  promise  may  be  regarded  as  equivalent  to  an  acceptance  of  the  draft.  It  has 
been  urged,  however,  on  the  authority  of  Hoffman  v.  Smith,  1  Gaines,  157,  that  the 
acceptance  of  the  bill  does  not  render  notice  of  non-payment  necessary  in  a  case  where 
there  were  no  funds.  This  may  be  true,  but  all  must  agree  that,  on  the  question 
whether  the  drawers  had  a  right  to  expect  that  their  draft  would  be  honored,  it  is  a 
fiict  of  the  most  commanding  character.  It  rests  on  the  plain  proposition,  that  the 
drawers  could  not  presume  that  the  drawees  would  violate  or  evade  their  express  en- 
gagement. And  as  a  circumstance  calculated  to  generate  in  the  minds  of  the  drawers 
the  belief  that  their  draft  would  be  paid,  it  may  be  considered  as  conclusive,  unless 
mitigated  or  explained."  In  Hill  v.  Norris,  2  Stew.  &  P.  114,  124,  Lipscomb,  J.  said  : 
"  The  fact  of  the  existence  of  a  running  account  between  two  men  engaged  in  business, 
and  the  acceptance  of  a  bill  by  one  of  them  for  the  other,  affords  a  twofold  ground  of 
presuming  the  drawer  believed  the  bill  would  be  honored  ;  the  fact  of  their  accounts 
being  unclosed  is  one,  and  the  acceptance  is  the  other.  Indeed,  it  is  difficult  to 
arrive  at  the  conclusion  that  the  drawer  did  not  feel  himself  authorized  to  draw,  if  the 
bill  has  been  accepted."  An  acceptance  may  be  made  under  the  belief,  or  the  prom- 
ise, that  the  drawer  will  put  the  acceptor  in  funds,  which  if  he  fail  to  do,  no  notice  is 
requisite.  Rhett  v.  Poe,  2  How.  457,  where  the  funds  were  withdrawn,  after  accept- 
ance, under  such  an  agreement.  Gillespie  v.  Cammack,  3  La.  Ann.  248.  In  English 
v.  Wall,  12  Rob.  La.  132,  where  the  bill  was  drawn,  waiving  acceptance,  under  such  a 
promise. 

(m)  Harwood  v.  Jarvis,  5  Sneed,  375.  Sed  quare.  As  against  the  drawer,  the 
holder  was  bound  to  make  a  demand  at  the  place  specified,  and  a  demand  on  the 
acceptor  at  any  other  place  would  have  been  unavailing.  So  it  might  appear  that 
want  of  funds  at  the  only  place  where  demand  could  have  been  made,  and  no  reason- 
able expectation  of  any  there,  would  be  a  sufficient  excuse 

Vol.  I.— 2  K 


546  NOTES   AND   BILLS.  [CH.  XIIL 

ontitle  the  drawer  to  notice. (m)  The  grounds  on  which  this  must 
rest  are,  that  the  excuse  of  want  of  funds  is  to  be  construed 
strictly,  and  not  to  be  extended ;  and  also  the  difficulty  of  exam- 
inino-  the  state  of  the  accounts  in  each  case  to  ascertain  what  and 
on  which  side  the  balance  lies ;  or  the  fact  that  the  drawer  may 
be  subject  to  injury  by  the  loss  of  some  of  his  funds. (o)     But  it 


(?i)  Thackray  v.  Blackett,  3  Camp.  164.  In  this  case,  when  two  bills  were  drawn, 
the  drawer  had  no  effects  in  the  hands  of  the  acceptors,  but  before  the  maturity  of 
either,  the  acceptors  owed  him  an  amount  less  than  one  of  the  bills.  Held,  that  the 
drawer  was  entitled  to  notice  of  non-payment.  Lord  EUenboroitgh,  C.  J.  said  :  "The 
excuse  of  want  of  effects  in  the  acceptors'  hands,  I  think,  is  equally  unavailing  as  to 
both  bills.  I  cannot  make  any  distinction  between  the  law.  If  there  was  an  open 
account  between  the  parties,  and  the  acceptors  were  indebted  in  any  sum  to  the  drawer 
before  the  bills  became  due,  I  cannot  say  that  he  must  necessarily  have  been  aware 
beforehand  that  either  of  them  would  be  dishonored."  See  Blackhan  v.  Doren,  2 
Camp.  303,  cited  supra,  p.  .539,  note  p.  In  Hill  v.  Norris,  2  Stew.  &  V.  114,  the  judge 
charged  the  jury  that,  although  there  was  a  small  balance,  yet  if  the  latter  was  too  in- 
considerable to  induce  a  reasonable  expectation  that  the  bill  would  be  paid,  no  notice 
of  non-jiayment  need  be  given  to  the  drawer.  This  charge  was  held  incorrect,  and  the 
judgment  for  the  defendant  reversed.  It  will  be  seen  that  the  bill  had  been  accepted. 
In  Lacoste  v.  Harper,  3  La.  Ann.  385,  the  bill  was  for  $2,777,  and  the  amount  of 
funds,  $883.  Slidell,  J.  said:  "We  are  not  aware  of  any  authority  extending  the 
exemption  of  the  necessity  of  notice  to  cases  where  the  drawee  had  funds  in  his  hands 
at  the  maturity  of  the  bill.  Even  if  the  funds  be  insufficient  to  cover  the  bill,  the 
drawer  is  entitled  to  notice  of  dishonor."  In  Wollcnweber  r.  Ketterlinus,  17  Penn. 
State,  389,  399,  Coulter,  J.  said :  "  If  the  drawer  has  any  funds  in  the  hands  of  the 
drawee,  no  matter  whether  they  be  sufficient  to  meet  the  draft  or  not,  he  is  entitled  to 
notice,  because  he  may  suffer  injury  to  some  extent  for  want  of  it."  Richardson,  J., 
Sutcliffe  V.  M'Dowell,  2  Nott  &  McC.  251  ;  Edwards  v.  Moses,  id.  433. 

(o)  In  Thackray  v.  Blackett,  3  Camp.  164,  Lord  EUmhorowjh.  C.  J.  seems  to  have 
given  this  as  a  reason.  In  Legge  v.  Thorpe,  12  East,  171,  he  said  :  "It  has  often  hap- 
pened to  me,  sitting  at  Nisi  Prius,  to  be  obliged  to  take  an  account  between  the  parties, 
in  order  to  see  whether  there  were  any,  and  what  funds,  or,  more  pr()i)or]y  speaking, 
whether  the  drawer  had  probable  funds  left  in  the  drawee's  hands  to  answer  the  bill ; 
whereas,  if  the  courts  had  adhered  to  the  original  simple  rule,  all  such  inquiries  would 
have  been  unnecessary,  and  no  doubt  would  have  existed  in  any  case."  It  will  be  seen, 
by  the  remarks  of  Coulter,  J.,  in  Wollcnweber  v.  Kefterlinus,  17  Penn.  State,  389,  399, 
cited  supra,  note  n,  that  he  gave  as  a  reason,  that  the  drawer,  without  notice,  would  at 
least  be  liable  to  some  injury.  In  Hill  v.  Norris,  2  Stew.  &  P.  114,  121,  Lipscomb,  J. 
said  :  "  If  indeed  the  court  were  to  assume  the  province,  or  should  direct  the  jury  to 
determine,  how  far  the  assets  in  the  hands  of  the  drawee  mu.st  be  reduced  before  notice 
to  the  drawer  could  be  dispensed  with,  it  would  he  found  exceedingly  difficult,  and  I 
might  witli  truth  say  that  it  would  be  impracticable  to  fix  on  any  standard  of  depre- 
ciation. The  instructions  of  the  court  below  were  to  the  effect,  that,  if  there  was  a  very 
small  amount  of  funds  in  the  hands  of  the  drawee,  that  it  did  not  entitle  the  drawer  to 
notice  ;  and  the  court  seems  to  have  drawn  the  conclusion,  that,  if  the  amount  of  funds 
60  in  the  hands  of  the  drawee  was  small,  that  the  drawer  could  not  be  injured  by  want 
of  notice.     It  seems,  however,  to  us,  that  tlie  rea.son  of  the  rule  wouhl  a])ply,  and  thot, 


CH.   XIII.]  EXCUSES   FOR   WANT   OF   NOTICE.  547 

is  strongly  urged,  that  where  all  transactions  between  the  parties 
have  ceased,  and  there  is  nothing  to  justify  a  draft  but  a  balance 
of  one  penny,  it  would  be  sporting  with  the  understanding  to  say 
that  a  creditor  for  this  balance  who  should  draw  for  ,£1,000 
would  be  in  a  situation  substantially  different  from  that  in  whicii 
he  would  be  were  he  the  debtor  in  the  same  sum.(j9)     The  true 

although  there  might  be  but  a  small  amount  of  assets,  tlie  drawer  ought  to  have  notice, 
to  enable  him  to  take  steps  to  secure  that  amount,  whatever  it  might  be.  I  admit,  that 
if  there  were  circumstances  to  satisfy  the  jury  that  the  drawer  committed  a  fraud  in 
drawing  on  the  drawee,  and  that  he  knew  that  his  bill  would  be  dishonored,  there 
would  be  much  force  in  the  argument  that  he  ought  not  to  be  permitted  to  take  shelter 
from  the  consequences  of  his  fraud  by  intrenching  behind  a  very  small  amount  of  assets 
tliat  might  be  in  the  hands  of  the  drawee.  But  I  must  again  repeat,  that  I  have  not 
known  a  case,  where  there  was  any  amount  of  funds  in  the  hands  of  the  drawee,  that 
it  has  been  ruled  that  the  drawer  was  not  entitled  to  notice." 

{p)  Marshall,  C.  J.,  Hopkirk  v.  Page,  2  Brock.  C.  C.  20,  .34,  where  the  drawee  had  a 
balance  in  his  hands  in  favor  of  the  drawer  to  the  amount  of  16s.  lid.,  the  bill  being 
£  246.  The  drawer  was  held,  without  any  notice  of  non-acceptance  or  payment.  The 
learned  judge  said  :  "  In  attempting  to  show  that  notice  of  the  dishonor  of  this  bill  was 
unnecessary,  because  the  drawer  had  no  effects  in  the  hands  of  the  drawee,  the  holder  is 
met  in  limine  by  the  fact,  that  this  letter  shows  a  balance  in  his  favor  of  16s.  lid.,  and 
the  exception  under  which  the  plaintiff  withdraws  himself  from  the  general  rule  is,  that 
the  drawer  had  at  the  time  no  effects  in  the  hands  of  tlie  drawee.  If  we  may  depart  from 
the  letter  of  the  exception,  there  is  no  point  at  which  to  stop  ;  and  if  notice  may  be  dis- 
pensed with  when  a  small  sum  is  in  the  hands  of  the  drawer,  it  may  also  be  dispensed 
with  when  a  large  sum  is  in  his  hands,  provided  that  sum  be  one  cent  less  than  the  bill 
is  drawn  for.  I  am  aware  of  this  argument,  but  think  it  more  perplexing  than  con- 
vincing." So  in  the  Matter  of  Brown,  2  Story,  502,  520,  Story,  J.  said  :  "  But  it  is 
said,  that,  in  cases  of  bills,  due  presentment  and  due  notice  are  necessary  whenever  the 
drawer  has  any  funds  in  the  hands  of  the  drawee  ;  and  the  same  reasoning  applies  to 
cases  of  checks.  Now  I  deny  both  the  premises  and  the  conclusion.  In  the  first  place, 
as  I  understand  it,  the  true  doctrine  is  this,  that  if  the  drawer  has  a  right  to  draw,  in 
the  belief  that  he  has  funds,  or  in  the  expectation  that  he  shall  have  funds  at  the  time 
of  the  presentment  for  acceptance,  by  reason  of  arrangements  with  the  drawee,  or  put- 
ting his  funds  in  transitu,  then  and  in  such  cases  he  is  entitled  to  due  notice.  But  accord- 
ing to  the  doctrine  now  contended  for,  if  the  drawer  knows  that  he  has  but  one  dollar 
in  the  hands  of  the  drawee,  and  he  has  no  expectation  of  any  more  being  added,  and 
has  no  right  to  believe  that  a  bill  for  more  will  be  honored,  he  may,  nevertheless,  draw  a 
bill  on  the  drawee  for  $  10,000  ;  and  if  it  is  dishonored,  as  he  knows  it  will  be,  he  is 
entitled  to  strict  notice ;  whereas,  if  he  had  not  one  dollar  in  the  drawee's  hands,  he 
would  not  be  entitled  to  any  notice  at  all.  Now  I  do  not  understand  the  law  to  involve 
any  such  strange  anomaly,  not  to  call  it  an  absurdity.  In  each  case  the  same  reason 
applies  ;  the  draft  is  a  fraud  upon  the  holder ;  and  in  each  case  a  meditated  fraud  shall 
not  be  sheltered  behind  a  rule  intended  to  protect  the  innocent  and  trustworthy."  In 
Blankenship  v.  Rogers,  10  Ind.  333,  an  order  was  drawn  for  $96,  on  which  payment 
of  $  38  was  indorsed,  and  a  protest  made  for  the  remainder.  No  notice  of  non-pay- 
ment was  held  necessary.     So  in v.  Stanton,  1  Hayw.  271,  where  the  drawee  paid 

over  the  fund?  which  he  had,  no  notice,  as  to  the  residue,  was  held  necessary.  See 
Smith  V.  Thatcher,  4  B.  &  Aid.  200. 


548  NOTES   AND   BILLS.  [CH.  Xm. 

inquiry  here,  as  in  the  other  cases,  must  be  whether  the  drawer 
was  justified  in  drawing  by  a  reasonable  expectation  that  the  bill 
would  be  honored. 

There  seems  to  be  some  little  confusion  with  regard  to  the  time 
when  the  reasonable  expectation  may  be  supposed  to  exist  in  the 
mind  of  the  drawer.  Thus,  it  has  been  said  that  actual  notice 
is  useless,  and  therefore  unnecessary,  only  when,  at  the  time  of 
draicing",  the  drawer  has  no  reason  to  expect  that  his  bill  will  be 
paid.(^)  But  we  think  this  view  is  open  to  much  objection,  and 
should  say  that  the  reasonable  expectation  depends,  not  on  the 
state  of  things  that  exists  at  the  time  the  bill  is  drawn,  but  upon 
the  circumstances  which  exist  at  the  time  when  it  should  be 
presented.  (/•) 

Thus,  although  the  drawer  may  have  ample  funds  in  the  hands 
of  the  drawee  at  the  date  of  the  bill,  or  of  the  acceptance,  yet, 
if   he  subsequently  withdraws  all  his  funds, (s)  provided  such 

(7)  MargJiall,  C.  J.,  French  r.  Bank  of  Columbia,  4  Cranch,  141,  158.  See  the  re- 
marks of  Lord  EUenhorough,  C.  J.,  in  Orr  v.  Maginnis,  7  East,  359.  See  Richie  v. 
McCoy,  13  Smedes  &  M.  541. 

(?•)  Dnrsei/,  J.,  Eichelberger  v.  Finley,  7  Harris  &  J.  381,  386.  In  Orear  v.  McDon- 
ald, 9  Gill,  350,  357,  Martin,  J.  said  :  "  The  right  to  demand  and  notice  does  not  de- 
pend upon  the  fact  that  the  drawers  had,  at  the  maturity  of  the  draft,  funds  in  the 
hands  of  the  drawees,  as  ascertained  by  ulterior  events,  adequate  to  its  payment. 
There  is  to  be  found  in  the  adjudications  on  this  subject  no  sucli  stringent  rule.  On 
the  contrary,  we  consider  the  principle  as  now  established  to  be,  that,  if  the  drawers,  at 
the  time  wlien  the  bill  should  have  been  presented,  had  the  right  to  expect,  reasoning 
upon  the  state  of  facts  connected  with  the  transactions  as  they  then  existed  between  the 
drawers  and  themselves,  that  their  bill  would  be  honored,  they  were  entitled  to  de- 
mand and  notice.  The  drawing  of  a  bill  under  such  circumstances  is  not  to  be 
treated  as  a  fraud." 

(s)  Rhett  V.  Poe,  2  How.  457,  where  the  drawer  had  funds  at  the  time  of  the  accept- 
ance in  the  acceptor's  hands,  but  subsequently  withdrew  them,  agreeing  to  provide 
others  at  maturity,  which  he  failed  to  do.  The  drawer  was  held,  without  notice  of  non- 
acceptance.  So  Valk  V.  Simmons,  4  Mason,  113  ;  Si)angler  ?'.  McDanicl,  3  Ind.  275, 
which  was  a  suit  on  a  non-negotiable  draft.  Dorset/,  J.,  Eiclielbcrgcr  v.  Finley,  7  Harris 
&  J.  381,  386.  Contra,  Orr  v.  Maginnis,  7  East,  359,  3  J.  P.  Smith,  328.  In  this 
case,  the  bill  was  drawn  for  £  172.  At  the  time  of  drawing  the  drawee  had  some  funds, 
how  much  did  not  aj)pcar.  The  drawer  was  a  master  of  a  vessel,  who  drew  on  account 
of  supplies  furnished  his  .sliip.  The  bill  was  i)rescntcd  for  acceptance  on  July  19th, 
and  acceptance  was  refused,  but  no  notice  was  given.  Some  time  in  M;iy,  the  drawee 
had  settled  with  the  drawer,  jiaying  over  to  him  the  balance  due,  whicli  amounted  to 
£  116.  The  bill  was  again  presented  for  payment  on  Oct.  22d,  and  notice  of  the  dis- 
honor duly  given.  Tlic  drawer  was  discharged  for  the  neglect  to  give  notice  for  non- 
acc(!ptance.  Lord  E/lcnhorouf/h,  C.  J.  said  :  "If  tlie  drawer  have  eflfccts  at  tlu;  time,  it 
would  be  very  dangerous  and  inconvenient,  merely  on  the  account  of  the  sbifting  of  a 
balance,  to  hold  notice  not  to  bo    necessary.     It  would  be  introducing  a  number  of 


( 


CH.  XIII.]  EXCUSES   FOR   WANT   OF   NOTICE.  549 

withdrawal  is  prior  to  maturity  or  presentment ;  (t)  or,  having 
funds  on  the  way,  if  he  intcrcc{)ts  them  and  prevents  them  from 
coming  into  the  hands  of  the  drawee  or  acceptor,  —  he  cannot 
be  said  to  have  any  reason  to  expect  the  bill  would  be  honored, 
and  therefore  he  is  not  entitled  to  notice. (r^) 

So,  perhaps,  although  the  drawer  at  tlie  time  he  draws  the  bill 
may  have  no  effects,  and  no  reason  to  expect  his  draft  will  be 
honored,  yet,  if  he  should  place  adequate  funds  in  the  hands  of 
the  drawee  before  presentment,  he  would  be  entitled  to  require 
due  presentment  and  notice  before  he  could  be  held  liable. (f) 

And  where  there  have  been  no  funds,  and  the  drawer  has  no 
right  to  expect  that  the  bill  would  be  honored,  notice  to  him  is 
unnecessary,  although  subsequent  to  the  presentment  the  drawee 
may  have  had  funds. (t^) 

We  should  say  that  the  mere  fact  that  the  drawer  had  no  ef- 
fects, from  the  time  the  bill  was  dated  till  maturity,  would  be 

collateral  issues  in  every  case  upon  a  bill  of  exchange,  to  examine  how  the  account 
stood  between  the  drawer  and  drawee,  from  the  time  the  bill  was  drawn  down  to  the 
time  it  was  dishonored."  Dors(>y,J.,  in  Eichelberger  v.  Finley,  7  Harris  &  J.  381,  385, 
mentions  this  case  as  "  a  memorable  illustration  "  of  the  fact  that  the  essence  and  mean- 
ing of  the  rule  laid  down  in  Bickerdike  v.  BoUman  had  lieen  lost  sight  of.  He  also 
said:  "If  a  case  can  be  imagined  in  which  a  want  of  effects,  with  a  knowledge  in  the 
drawer  that  his  bill  would  be  dishonored,  dispenses  with  notice,  it  might  well  be  sup- 
posed this  was  that  case.  It  does  not  appear  that  the  drawer,  at  the  time  the  bill  was 
drawn,  before  or  subsequently,  ever  had  credit  with  the  drawees  for  one  fiirthing  more 
than  to  the  amount  of  the  effects  in  hand.  Having,  then,  withdrawn  the  only  fund 
which  could  sustain  the  honor  of  his  bill,  did  he  not  know,  by  anticipation,  the  fact 
of  its  non-acceptance  ■? "  See  also  the  renaarks  of  Lord  Ellenhorough,  C.  J.,  cited 
infra,  note  v. 

(t)  Adams  v.  Darby,  28  Misso.  162. 

(m)  Valk  V.  Simmons,  4  Mason,  113. 

{v)  Dorsey,  J.,  Eichelberger  v.  Finley,  7  Harris  «Sb  J.  381,  386.  In  Hammond  v. 
Dufrene,  3  Camp.  145,  the  bill  was  drawn  for  £301.  At  the  time  of  drawing  and 
of  accepting  there  were  no  funds,  but  before  maturity  the  drawer  sent  the  acceptor 
£  400.  The  drawer  was  held  entitled  to  notice  of  non-payment.  Lord  Ellenhorough, 
C.  J.  said  :  "  I  think  the  drawer  has  a  right  to  notice  of  the  dishonor  of  a  bill,  if  he 
has  effects  in  the  hands  of  the  acceptor  at  any  time  before  it  becomes  due.  ....  I  am 
aware  that  the  inquiry  has  generally  been,  as  to  the  state  of  accounts  between  the 
drawer  and  drawee  when  the  bill  was  drawn  or  accepted  ;  but  I  conceive  the  whole 
period  must  be  looked  to,  from  the  drawing  of  the  bill  till  it  becomes  due,  and  that  no- 
tice is  requisite,  if  the  drawer  has  effects  in  the  hands  of  the  drawee  at  any  time  during 
thp^  interval." 

{w)  Cathell  v.  Goodwin,  1  Harris  &  G.  468,  where  the  drawee  told  the  holder  that  he 
expected  funds  shortly,  and  when  they  arrived  he  would  pay  the  bill.  The  funds  did 
subsequently  arrive,  though  at  what  time  did  not  appear.  No  subsequent  presentment 
was  made,  and  no  notice  given.     Held,  that  the  drawer  was  liable. 


650  NOTES  AND   BILLS.  [CH   XIH. 

sufficient,  j^rima  facie,  to  excuse  want  of  presentment  for  accept- 
ance, for  payment,  or  for  notice  of  either ;  and  there  are  some 
authorities  which  adopt  this  view, (a;)  although  it  may  be  in  con- 
flict with  others.  (2/)  It  will  then  be  incumbent  for  the  drawer  to 
set  up  in  defence  such  circumstances  as  will  entitle  him  to  a  right 
to  have  expected  that  his  draft  would  be  honored, (c)  There  can 
be  no  hardship  in  this,  for  it  would  be  easy  for  the  drawer  to 
show  such  circumstances  if  they  exist,  for  they  must  be  facts  par- 
ticularly within  his  own  cognizance ;  and  it  would  be  very  diffi- 
cult for  the  plaintiff  to  prove  the  negative,  or  that  there  were  no 
such  circumstances. 


[x)  Dunum  v.  Hendrick,  4  Texas,  495  ;  Cook  v.  Martin,  5  Smedes  &  M.  379  ;  Col- 
lier, C.  J,  Tarvcr  v.  Nance,  5  Ala.  712.  In  a  suit  on  a  protested  order,  the  plaintiff 
is  not  bound  to  allege  and  prove  notice  of  non-payment,  if  he  allege  and  prove  that, 
at  the  date  of  the  order,  the  drawee  had  no  effects  of  the  drawer  in  his  hands,  except 
the  amount  paid  and  credited  on  the  order  on  presentment.  Ibid.  In  Kemblc  v.  Mills, 
1  Man.  &  G.  757,  767,  Tindal,  C.  J.  said  :  "  Upon  general  demurrer,  it  is  sufficient  if 
we  see  that  the  plaintiff  has  excused  himself  upon  the  broad  ground  tiiat  the  defendant 
had  no  assets  in  the  l)ankers'  hands  ;  that  is  the  ground  upon  which  the  early  cases  were 
decided,  and  if  the  defendant  wished  to  object  to  the  form  of  tlie  declaration,  he  sliould 
have  demurred  specially."  So  Maule,  J.,  Kemble  v.  Mills,  1  Man.  &  G.  771,  infra, 
note  2.  In  Fitzgerald  v.  Williams,  6  Bing.  N.  C.  68,  Tindal,  C.  J.  said  :  '  The  plain- 
tiff having  averred,  as  an  excuse  for  not  giving  notice  of  the  dislionor  of  the  bill, 
that  the  defendant  had  no  funds  in  the  acceptor's  hands,  assigned  a  sufficient  ex- 
cuse, if  he  had  stopped  short  there;  for  if  the  defendant  had  no  funds  in  the  hands  of 
the  acceptor,  he  was  not  damnified  ;  if  he  was,  after  the  issue  he  has  taken  upon  tho 
whole  allegation,  the  proof  would  have  come  more  properly  from  him."  So  Parke,  B., 
in  Carter  v.  Flower,  16  M.  &  W.  743,  750,  referring  to  these  cases,  said :  "  Lord  Chief 
Justice  Tindal  intimated,  and  we  think  correctly,  that  it  would  have  been  sufficient  if 
the  ])laintiff  had  stopped  with  the  averment  of  want  of  effects;  and  tlie  allegation,  that 
no  damage  was  sustained,  seems  to  have  been  treated  by  the  court  as  immaterial. 
We  do  not  conceive  that  the  court  attributed  any  weight  in  giving  their  judg- 
ment, in  Kemble  v.  Mills,  to  the  averment  that  the  defendant  had  sustained  no  damage. 
The  Lord  Chief  Justice  and  Mr.  Justice  Maule  expressly  excluded  that  consideration, 
and  rested  on  tlie  broad  ground,  that  the  averment  of  want  of  assets  was  suihcicnt.  In 
an  action  against  the  drawer  of  a  bill,  this  form,  therefore,  must  be  deemed  sufficient,  at 
least  on  general  demurrer."     See  the  remarks  of  lidi/tci/,  J.,  cited  infra,  p.  551,  note  c. 

(y)  Wlictlier  the  fact  of  absence  of  funds  at  maturity  is  sufficient  to  show  absence  of 
a  right  to  expect  the  honor  of  the  bill,  would  seem  to  be  doubteil  or  denied,  in  Kichio 
V.  McCoy,  13  Smedes  &  M.  541,  where  it  was  held  that  it  was  not,  in  the  case  of  an 
acce|)'ed  hill.     See  supra,  p.  544,  note  i. 

(z)  Durrum  v.  Hendrick,  4  Texas,  495  ;  Cook  v.  Martin,  5  Smedes  &  M.  379  ; 
CkJlif.r,  C.  J.,  Tarvcr  v.  Nance,  5  Ala.  712.  In  Kemble  i).  Mills,  1  Man.  &  G.  757,  771, 
Maule,  .].  said  :  "  When  it  is  sliowii  that  the  drawee  had  no  assets  in  the  hands  of  tho 
drawer,  that  is  generally  sufficient.  Where  there  is  anything  to  take  the  case  outof  l\io 
general  rule,  that  should  come  from  the  other  side."  See  the  remarks  of  Tiiulal,  C.  J., 
cited  supra,  note  x. 


CH.  XIII.]  EXCUSES   FOR   WANT   OF  NOTICE.  551 

It  would  seem  to  be  usual,  however,  to  aver  both  want  of 
effects,  absence  of  a  right  to  draw,  and  a  denial  of  injury.  The 
latter  has  been  held  unnecessary,  because  the  want  of  effects 
itself  is  prima  facie  proof  that  there  has  been  no  injury ;  (a)  and 
we  can  see  no  good  reason  why  the  absence  of  effects  is  not  pre- 
sumptive proof  of  an  absence  of  a  right  to  draw.  So  also,  where 
a  want  of  funds  and  absence  of  injury  is  alleged,  it  is  not  neces- 
sary to  aver  that  the  defendant  had  no  reasonable  expectation 
that  his  bill  would  be  honored. (6) 

It  has  been  intimated,  that  if  the  drawer  can  prove  hijury,  he 
will  bo  entitled  to  a  discharge  from  liability,  at  least  proportion- 
ably,  (c)  We  are  not  aware  of  any  express  decision  to  tliis  effect, 
and  should  say  that  the  only  reason  to  support  it  would  be  the 
principle  that  tlie  excuse  of  which  we  are  treating  is  not  to  be 
extended  ;  or  the  supposition  that,  if  the  drawer  has  no  right  to 
draw,  he  cannot  suffer  an  injury  from  which  due  presentment 
and  notice  could  save  or  protect  him.(c/)  The  injury  has  sprung 
from,  and  is  the  consequence  of,  his  own  act,  which,  if  it  be  not  ab- 
solutely fraudulent,  must  be  considered  as  at  least  wrongful ;  and 
he  should,  we  think,  suffer  for  that  for  which  he  alone  is  to  blame. 

(a)  Cook  V.  Martin,  5  Smedes  &  M.  379.  Nor  is  it  necessary  to  prove  it,  if  alleged, 
id.  In  Fitzgerald  v.  Williams,  6  Bing.  N.  C.  68,  the  plaintitF  averred  that  the  defend- 
ant had  no  funds,  and  had  sustained  no  injury.  The  defendant  pleaded  that  he  had 
sustained  damage,  because  the  acceptor  had  promised  to  provide  for  the  bill.  Held,  not 
incumbent  on  the  plaintiff  to  prove  that  the  defendant  had  sustained  no  damage.  See 
the  case  and  remarks  cited  supra,  p.  550,  note  x.  But  in  Baxter  v.  Graves,  2  A.  K. 
Marsh.  152,  it  seems  to  have  been  held  that  the  plaintiff  should  show  that  the  defend- 
ant, a  drawer,  suffered  no  injury. 

(6)  Thomas  v.  Fenton,  5  Dow.  &  L.  28,  Coleridge,  J.  said  :  "  The  reasonable  expec- 
tation of  assets  entitles  to  notice  only  on  the  ground  that  the  drawer,  under  such  cir- 
cumstances as  raise  that  expectation,  may  be  damnified  by  the  want  of  it ;  to  allege, 
therefore,  that  he  has  sustained  no  damage  removes  the  ground  on  which  notice  is 
necessary.  It  may  also  be  argued  that  the  plaintiff  is  not  bound,  in  the  first  instance, 
to  allege  that  which  cannot  be  within  his  knowledge,  and  that  such  a  fact  should  prop- 
erly come  by  way  of  plea." 

((■)  la  Cory  v.  Scott,  3  B.  &  Aid.  619,  Baijlftj,  J. :  "  The  case  of  Bickcrdike  v.  Boll- 
man  is  a  right  decision  ;  but  wherever  the  drawer  can  show  that  the  want  of  notice  may 
produce  any  detriment,  the  case  will  be  very  ditlerent.  Where  he  has  no  effects  in  the 
hands  of  the  acceptor,  that  is  prima  facie  evidence  that  he  will  not  be  injured  by  the 
want  of  notice,  but  that  prima  facie  presumption  may  be  rebutted  ;  and  if  the  drawer 
can  show  actual  prejudice,  it  takes  it  out  of  the  case  of  Bickcrdike  i.'.  Bollman."  See 
the  remarks  of  Tindal,  C.  J.,  cited  supra,  p.  550.  note  x.  This  is  the  reason  given  in 
the  cases  cited  supra,  p  546,  notes  n,  o,  which  hold  that  proof  of  any  effects  whatever 
in  the  drawee's  hands  will  entitle  the  drawer  ta  notice. 

(d)  In  some  of  the  cases  cited  supra,  p.  547,  note/),  there  might  have  liecn  a  slight 
injury,  and  no  notice  was  necessary.    See  also  the  cases  on  checks,  infra,  p.  552. 


552  NOTES   AND   BILLS.  [CH.  XHI. 

The  same  rules  are  applicable  to  the  drawer  of  a  check,  who  is 
liable  without  presentment  or  notice,  if  lie  has  no  funds  in  the 
bank  upon  which  the  check  is  drawn. (e)  In  our  chapter  on 
Checks  we  consider  the  law  of  presentment  in  regard  to  them  ; 
here  we  will  only  say,  that  the  exception  should  be  construed 
more  liberally  with  regard  to  checks ;  at  least  where  the  check  is 
drawn  on  a  public  banking  corporation.  These  corporations  do 
not  receive  goods  on  consignment,  therefore  there  can  be  no  rea- 
son to  expect  that  the  check  will  be  honored  on  any  such  grounds 
as  this.  There  would  seem  to  be  scarcely  any  reasonable  grounds 
to  expect  payment,  and,  consequently,  any  right  to  draw  a  check, 
unless  the  bank  had  sufficient  funds  to  pay  it.(/)     The  bank  has 


(e)  In  the  following  cases  no  presentment  was  held  necessary,  the  drawer  having  no 
funds.  Gushing  r.  Gore,  15  Mass.  69 ;  Franklin  v.  Vanderpool,  1  Hall,  78;  Healy 
V.  Oilman,  1  Bosw.  235  ;  Coyle  v.  Smith,  1  E.  D.  Smith,  300.  Contra,  Radcliff,  J., 
Cruger  v.  Armstrong,  3  Johns.  Cas.  5.  In  the  fallowing  cases  no  notice  of  non-pay- 
ment was  helil  necessary.  Eichelberger  v.  Finley,  7  Harris  &  J.  381  ;  Iloyt  v.  Soeley, 
18  Conn.  353  ;  Fitch  v.  Redding,  4  Sandf.  130 ;  Coylc  v.  Smith,  I  E.  D.  Smith,  400  ; 
Healy  v.  Oilman,  1  Bosw.  235;  Kemble  v.  Mills.  1  Man.  &  O.  757.2  Scott,  N.  R. 
121,  9  Dowl.  446;  In  the  Matter  of  Brown,  2  Story,  502;  Radcliff,  J.,  Cruger  v. 
Armstrong,  3  Johns.  Cas.  5.  See  Case  v.  Morris,  31  Penn.  Slate,  100.  So  wliere  the 
drawer  withdraws  his  funds  before  the  time  when  the  check  should  have  been  presented. 
Coyle  I'.  Smith,  1  E.  I).  Smith,  400,  where  at  the  date  of  the  check  the  drawer  had  a 
few  dollars  on  deposit.  Subsequently  he  had  made  a  deposit,  but  withdrew  it  the  ne.xt 
day.  No  presentment  and  notice  were  held  necessary.  SutclitTe  v.  McDowell,  2  Nott 
&  McC.  251.  In  this  case,  however,  it  appeared  that  the  drawer  withdrew  his  deposit, 
that  the  check  might  be  dishonored.  In  Brown  v.  Lusk,  4  Yerg.  210,  the  drawer  was 
held  entitled  to  notice,  although  he  had  no  funds  in  the  bank,  having  drawn  for  the  ac- 
commodation of  the  payee.     Sed  quoere. 

(f)  We  are  not  av/are  of  any  authority  for  this.  In  Edwards  v.  Moses,  2  Xott  & 
McC.  433,  all  the  facts  tiiat  appeared  were,  that  at  the  time  when  the  check  should  liavo 
been  presented,  the  drawer  had  withdrawn  all  his  funds.  Richardson,  J.  said  that  it 
was  a  mere  case  of  overdrawing,  and  due  presentment  and  notice  were  held  necessary. 
But  we  doubt  the  authority  of  this  case.  In  Cruger  v.  Armstrong,  3  Johns.  Cas.  5, 
the  check  was  drawn  for  $  2,500.  On  the  day  of  its  date  the  bank  paid  out  checks  of 
the  drawer  to  the  amount  of  $  3,500,  and  at  the  close  of  banking  hours  a  balance  woa 
left  of  $  400.  Presentment  was  held  necessary,  Lfwis,  C.  J  dissenting.  The  authority 
of  this  case  may  be  somewhat  doubtful.  Radcliff,  J.  said  that  presentment  was  neces- 
sary, though  notice  might  not  have  been,  and  founds  his  oijinion  on  this,  which  is  clearly 
incorrect.  Kent,  J.  said :  "  In  the  present  case  there  is  no  such  demand  proved,  nor 
is  there  anything  so  peculiar  in  this  case  as  to  take  it  out  of  the  general  rule.  Il  can- 
not be  considered  as  a  check  fraudulently  drawn,  without  cflTects  in  the  hands  of  tho 
banker.  TIk;  presumption  is,  that  the  check  would  have  been  paid  if  diligently  ])rc- 
scnted  ;  nt  least,  there  is  not  evidence  sufKcicnt  to  justif)'  a  resort  to  the  drawer  without 
having  made  the  experiment."  The  answer  to  this  may  perhaps  be,  that  the  drawer  is 
bound  to  knf)W  what  his  balanci;  in  the  bank  is,  and  as  the  holder  is  not  bound  lO  pre- 
sent a  check,  in  any  case,  until  the  next  day,  and  as  there  were  checks  oulstandii'g,  tho 
amount  of  which,  added  to  th.-it  of  the  check  in  suit,  exceeded  his  balance,  the  prcsump 


CH.  XIII.]  EXCUSES    FOll   WANT    OF   NOTICE.  553 

no  right  to  allow  any  i)arty  to  overdraw ;  (g-)  consequently  the 
drawer  cannot  expect  it ;  and  where  there  are  funds  sufficient  to 
pay  a  part  only  of  the  check,  it  is  difficult  to  see  how  the  drawer 
can  be  considered  as  having  a  right  to  expect  that  the  check  will 
be  paid,  inasmuch  as  the  bank  has  a  right  to  have  the  check 
delivered  up  to  it  on  payment,  as  a  voucher,  and  the  holder 
would  be  unwilling  to  give  it  up  on  part  payment  only,  because 
it  would  be  surrendering  the  evidence  of  the  drawer's  indebted- 
ness to  him. (A)  It  would  seem,  also,  that  the  fact  tiiat  the  bank 
held  in  pledge  security  belonging  to  the  drawer  would  not  alter 
the  case,  since  checks  are  supposed  to  be  drawn  on  cash  actually 
on  deposit ;  unless  the  bank  had  promised  on  this  security  to  pay 
the  checks. 

It  has  been  held  that  this  excuse  is  only  applicable  to  the 


tion  of  payment  would  have  been  slight.  A  small  balance  will  not  entitle  the  drawer 
to  presentment  and  notice.  Coylc  v.  Smith,  1  E.  D.  Smith,  400.  In  the  Matter  of 
Brown,  2  Story,  502,  where  there  were  two  checks  to  the  amount  of  $  1,430,  and  a  bal- 
ance of  $  30  on  the  day  wiien  they  were  drawn.  Eichelberger  v.  Finley,  7  Harris  &  J. 
381,  where  there  were  two  checks,  one  for  $  1,450,  and  the  other  for  $  1,500,  both  dated 
Marcli  26.  At  the  date,  the  drawer's  balance  in  the  bank  on  which  they  were  drawn 
was  $  500,  on  the  next  day  $  400,  and  for  several  days  after  from  $  200  to  $400.  The 
checks  were  presented  June  3.  In  May,  the  bank  appropriated  all  the  funds  of  the 
drawer  to  the  payment  of  a  debt  due  by  him  to  the  corporation,  in  consequence  of  cer- 
tain stock  transactions. 

(g)  In  Eichelberger  v.  Finley,  7  Harris  &  J.  381,  387,  Dorsey,  J.  said,  after  referring 
to  the  cases  on  bills  of  exchange  :  "  But  it  is  conceived  that,  waiving  all  exceptions  to 
the  soundness  of  these  decisions,  they  bear  no  application  to  the  case  now  under  con- 
sideration.* They  were  made  on  transactions  between  individual  correspondents  who 
may  have  had  a  mutual  confidence  and  credit,  and  were  perfectly  com[)etent  to  honor 
each  other's  bills,  drawn  either  with  or  without  effects.  Not  so  as  to  tlie  officers  of  the 
public  banking  institutions  in  this  State.  With  them  tlie  customers  of  the  Ijank  liave 
no  acconmiodation  credit,  and  without  a  gross  violation  of  their  trust,  they  can  honor 
no  check  or  draft  upon  them  beyond  the  amount  of  deposits  standing  to  the  credit  of 
him  by  whom  such  check  or  draft  may  be  drawn." 

[h]  In  the  Matter  of  Brown,  2  Story,  502,  519,  Story,  J.  said  :  "  Now  in  the  case  of 
a  check,  I  take  it  to  be  clear,  that  the  drawer  implicitly  engages  that,  at  the  time  when 
the  check  is  due  and  payable,  he  has,  and  will  have  then,  and  at  all  times  thereafter, 
sufficient  funds  in  the  bank  to  pay  the  same,  upon  presentment  ;  and  by  the  draft,  he 
appropriates  those  funds  absolutely  for  the  use  of  the  holder.  Now  the  bank  is  not 
bound  to  pay.  unless  it  is  in  full  funds  ;  and  it  is  not  obliged  to  pay,  or  to  accept  to  pay, 
if  it  has  partial  funds  only,  for  it  is  entitled  to  the  possession  of  the  check  on  i)ayment ; 
und  indeed,  in  the  ordinary  course  of  business,  the  only  voucher  of  the  bank  for  any 
payment  is  the  production  and  receipt  of  the  check,  which  the  bolder  cannot  safely  part 
with,  unless  he  receives  full  payment,  nor  the  bank  exact,  unless  under  the  like  cir- 
cumstances. The  holder  is  not  bound  to  accept  part  payment,  even  if  the  bank  is 
willing  to  pay  in  part,  for  he  has  a  claim  to  the  entirety." 

VOL.  I.  47 


554  NOTES  AND   BILLS.  [CH.  XHI. 

drawer,  and  does  not  apply  in  the  case  of  an  indorser,  because 
the  latter  has  no  concern  with  the  accounts  between  drawer 
and  drawee,  and  as  he  has  the  drawer  liable  over  to  him,  he 
may  be  injured  by  want  of  the  notice  ;  and  consequently,  the 
indorser  is  entitled  m  all  these  cases  to  due  presentment  and 
notice.  (?) 

Though  this  would  be  true  in  general,  yet  there  may  be  excep- 
tions. Thus,  where  the  indorser,  at  the  time  he  indorsed,  knew 
that  the  drawer  had  no  right  to  draw,  and  the  latter  was  under 
no  obligations  as  regards  the  former  to  take  up  the  bill,  it  may 
well  be  doubted  whether  a  demand  or  notice  would  be  necessary 
to  charge  the  indorser. (j)  Certainly,  if  the  drawing  were  a 
fraud,  and  the  indorser  at  the  time  of  mdorsing  was  aware  of 
that  fact,  he  could  have  no  remedy  over  against  the  drawer,  for 
he  must  be  considered  as  a  party  to  the  fraud. 

In  concluding  this  particular  subject  of  excuse,  we  cannot  but 
think  that  much  of  the  obscurity  and  confusion  which  exists  is 
owing  to  the  desire  manifested  by  the  courts  to  lay  down  and 
adhere  to  a  fixed  and  inflexible  rule,  —  that  notice  is  in  all  cases 


(?)  Wilkes  V.  Jacks,  Peake,  202 ;  "Warder  v.  Tucker,  7  Mass.  449  ;  Mohawk  Bank 
V.  Broderick,  10  Wend.  304,  13  id.  133,  a  check  case;  Scarborough  v.  Harris,  1  Bay, 
177;  Fotheringham  v.  Price,  id.  291  ;  Boi/le,  C.  J.,  Ralston  v.  Bullitts,  3  Bibb,  261, 
263 ;  Deniiiston  v.  Imbrie,  3  Wash.  C.  C.  396  ;  RamduloUday  v.  Daricux,  4  id.  61,  where 
Washington,  J.  said:  "No  case  has  ever  yet  gone  so  far  as  to  dispense  with  notice  tc> 
indorsers.  And  it  is  most  obvious  that  the  reason  upon  which  the  rule  in  Bickerdiko 
T.  Bollman  proceeded  is  inapplicable  to  the  case  of  an  indorser.  A  man  who  draws  a 
bill  when  he  knows  that  he  has  no  right  to  do  so,  and  then  parts  with  it  for  a  valuable 
consideration,  is,  to  say  the  least  of  him,  guilty  of  legal  fraud,  and  consequently  is  not 
entitled  to  the  benefit  of  notice.  Besides,  he  cannot  be  injured  from  the  want  of  it,  as 
he  has  no  person  to  look  to  but  the  drawee,  and  therefore  cannot  sutler  if  he  had  noth- 
ing in  his  hands  on  which  to  draw.  But  what  is  all  this  to  an  indorser  who  has  com- 
mitted no  fraud,  actual  or  constructive,  and  who,  having  ;i  claim  to  indcmnily  against 
every  person  upon  the  bill  above  himself,  ought  to  be  placed  in  a  situation  to  secure 
himself  if  he  can  1  "     See  Carter  v.  Flower,  16  M.  &  W.  743,  Parke,  B. 

(_;■)  In  Sisson  v.  Tliomlinson,  1  Selw.  N.  P.,  11th  ed.,  257,  Lord  [Clleuhorough ,  C.  J. 
ruled,  tiiat  "where  the  indorser  has  not  given  any  consideration  for  a  bill,  and  knows 
at  the  time  that  the  drawer  has  not  any  ctfccts  in  the  hands  of  the  drawee,  he,  the  in- 
dorser, is  not  entitled  to  notice  of  the  non-])ayment."  So  Farmers'  Bank  v.  Vanmeter, 
4  Rand.  Va.  553,  where  the  indorser  knew,  at  the  time  of  indorsing,  that  tiie  drawer  had 
no  right  to  draw,  or  to  expect  payment.  The  point  arose  in  Fenwick  v.  Sears,  1 
Cranch,  ^59,  but  was  not  decided.  In  Corney  i;.  Da  Costa,  1  Esp.  302,  Biilhr,  J.  said  : 
"That  it  was  undoubtedly  necessary  that  an  indorser  of  a  note  should  have  notice  of 
the  default  of  the  maker  in  payment.  But  that  was  only  the  case  where  there  were 
effects  of  the  indorser  in  the  maker's  bands,  and  that  he  miglit  suffer  from  tie  want  o/ 
Buch  notice ;  but  when  there  were  no  effects,  no  notice  was  necessary." 


CH.  XIII.]  EXCUSES   FOR   WANT   OF  NOTICE.  555 

necessary,  to  which  all  circumstances  must  bend, —  rather  than 
to  allow  an  exception,  once  well  established,  to  be  moulded  and 
varied  by  the  changing  circumstances  of  each  case.  It  would  be 
better  to  overrule  the  original  case  at  once,  than  to  confnie  it 
withhi  artificial  limits,  or  to  so  pare  it  away  by  exception  after 
exception,  that  the  reasons  on  which  the  rule  itself  rests  are  lost 
sight  of  and  disappear. 

Questions  closely  connected  with  the  topic  which  we  have  just 
been  considering  have  arisen  in  the  case  of  accommodation  pa- 
per. A  party  may  request  another  to  draw  upon  him,  although 
there  may  be  no  funds  in  his  hands,  and  no  expectation  of  hav- 
ing any ;  and  the  bill  may  be  drawn  at  such  request,  and  then, 
when  it  is  accepted,  the  acceptor  may  be  able  to  negotiate  it,  and 
thereby  raise  money  on  the  strength  and  credit  of  the  drawer's 
name.  In  such  case  the  drawer  clearly  has  a  right  to  draw,(A') 
and,  in  accordance  with  the  rule  already  laid  down,  is  entitled  to 
demand  that  regular  presentment  be  made,  and  that  due  notice 
be  given,  in  case  of  dishonor. (/)  There  is  also  this  additional 
fact  to  be  taken  into  consideration,  that  the  acceptor,  in  such 
case,  is  liable  to  the  drawer,  and  the  latter  may  be  injured  by  the 
neglect  to  receive  prompt  notice,  and  so  be  deprived  of  some  op- 
portunity which  he  might  otherwise  have  had  of  indemnifying 
himself. 

The  same  rule  applies  where  the  drawer  drew  for  the  accom- 
modation of  another  party,  as  an  indorser,(w)  for  instance,  or  a 
co-drawer.  (?i) 

(k)  Marshall,  C.  J.,  French  v.  Bank  of  Columbia,  4  Cranch,  141. 

{I)  Sleigh  V.  Sleigh,  5  Exch.  514,  where  the  drawer  paid  a  part  of  the  bill,  knowing 
that  he  had  been  discharged  by  laches  in  presentment  and  notice  ;  and  it  was  held  that 
he  could  not  recover  the  amount  of  the  acceptor  in  an  action  for  money  paid  to  his  use. 
See  Ex  parte  Heath,  2  Ves.  &  B.  240 ;  Bank  of  Louisiana  v.  Morgan,  13  La.  Ann.  .598  ; 
Shirley  v.  Fellows,  9  Port.  Ala.  300,  where  there  were  no  funds  in  the  hands  of  the 
acceptor,  — notice  of  non-payment  was  held  necessary  ;  Sherrod  v.  Rhodes,  5  Ala.  683, 
where  it  was  held  tliat  it  made  no  difference  that  the  drawer  owed  the  acceptor  a  sum 
equal  to  the  amount  of  the  bill,  since  it  did  not  appear  that  the  bill  was  drawn  in  pay- 
ment of  the  debt. 

(m)  Whitfield  v.  Savage,  2  Bos.  &  P.  277 ;  Cory  v.  Scott,  3  B.  &  Aid.  619 ;  Norton 
V.  Pickering,  8  B.  &  C.  610,  where  neither  tiie  drawer  nor  indorser  had  any  effects  in 
the  hands  of  the  acceptor;  Curry  v.  Herlong,  11  La.  Ann.  634;  Brown  v.  Lusk,  4 
Yerg.  210.  But  the  case  might  well  be  different,  where  acceptance  had  been  refused, 
the  drawer  having  no  pretence  of  a  right  to  draw,  and  the  accommodated  party  know 
ing  this  fact. 

(n)  Miser  v.  Trovinger,  7  Ohio  State,  281,  where  it  was  contended  that  the  unity  of 


5'oQ  NOTES    AND    BILLS.  [CH.  XIH. 

The  indorser  of  a  bill  for  the  accommodation  of  the  drawer,(o) 
or  for  another  indorser,(  p)  would,  for  a  still  stronger  reason,  be 
entitled  to  regular  demand  and  notice ;  unless  the  indorsement 
were  proved  to  have  been  made  under  circumstances  clearly 
showing  that  the  drawer  had  no  right  to  draw,  or  to  expect  the 
honor  of  the  bill ;  {q)  and  w^e  should  also  say,  unless  these  cir- 
cumstances were  known  to  the  indorser. 

A  party  may  likewise  indorse  a  note  for  the  accommodation  of 
the  maker,  and  this  being,  as  we  have  seen,  very  analogous  to 
drawing  a  bill  on  the  maker  and  an  acceptance  by  the  latter,  the 
same  rule  applies,  and  the  indorser  is  entitled  to  notice. (r)     So 


interest  was  such  that,  it  being  uunecessary  to  give  notice  to  the  accommodated  party, 
rendered  it  unnecessary  to  give  notice  to  the  others. 

(o)  Warder  v.  Tucker,  7  Mass.  449.  See  Rea  v.  Dorrauce,  18  Maine,  137,  where 
an  indorser  was  discharged,  presentment  having  been  made  the  day  after  maturity. 

(p)  Brown  v.  INIaffey,  15  East,  216,  where  the  drawer,  acceptor,  and  two  oilier  indors- 
ers  besides  the  defendant,  accommodated  the  last  indorser.  It  appeared  that  the  defend- 
ant was  not  aware,  when  he  indorsed,  of  the  absence  of  effects  in  the  acceptor's  hands. 

(q)  Farmers'  Bank  v.  Vanmeter,  4  Hand.  Va.  553 ;  Sisson  i-.  Thomlinson,  1  Selw. 
N.  P.,  Uthed.,  257. 

(r)  French  v.  Bank  of  C,  4  Cranch,  141  ;  Smith  i'.  Becket,  13  East,  187  ;  Sandford 
».  Dillaway,  10  Mass.  52  ;  Jackson  v.  Richards,  2  Caines,  343;  Buck  v.  Cotton,  2 
Conn.  126  ;  Holland  t'.  Turner,  10  id.  308  ;  Groton  v.  Dallhcim,  6  Greenl.  47G,  where 
the  indorser  was  discharged  because  presentment  was  made  the  day  after  maturity,  and 
no  notice  given  for  more  than  three  months  ;  Bogy  ?•.  Kcil,  1  Misso.  743 ;  Denny  v. 
Palmer,  5  Ired.  610.  The  contrary  doctrine  appears  to  have  been  held  in  I)e  Berdt  v. 
Atkinson,  2  H.  Bl.  336,  where  the  indorser  at  the  time  of  indorsing  knew  that  the 
maker  was  insolvent.  The  demand  was  made  the  day  after  maturity,  and  no  notice 
given  for  five  days.  The  indorser  was  held.  Lord  C.  J.  Eyre's  opinion  proceeded 
mainly  on  the  ground  that  the  notice  was  absolutely  useless  where  the  indorser  was 
well  aware  of  the  maker's  insolvency  at  the  time  of  indorsing.  Bullcr,  J.  said  :  "  Here 
it  is  plain  that  the  indorser  lent  his  name  merely  to  give  credit  to  the  note,  and  was 
not  an  indorser  in  the  common  course  of  business.  It  is  no  answer  to  say  that  he  re- 
ceived no  benefit;  he  never  meant  to  receive  any."  Rooke  and  Ilcath,  JJ.  simply  con- 
curred. This  case  was  decided  in  A.  D.  1794,  and  in  seventeen  months  after  a  similar 
question  arose  in  Nicholson  ;;.  Gouthit,  2  II.  Bl.  610,  the  facts  of  which  case  were  as 
follows.  The  maker  was  insolvent,  and  the  defendant  indorsed  for  his  accoinmodation. 
Just  before  maturity  the  indorser,  learning  that  the  maker  had  made  no  jirovision  for 
the  payment  of  the  note  at  the  banker's  at  whose  ])lace  of  business  the  note  was  pay- 
able, desired  the  i)anker  to  refer  the  party  presenting  the  note  to  him,  and  he  would 
pay  it,  as  he  then  \vm\  a  fund  to  meet  it.  The  note  was  not  presented  till  three  days 
after  maturity,  and  if  presentment  had  been  made  at  the  proper  time,  it  would  have 
been  paid  ;  but  not  having  been  so  presented,  the  defendant  had  paid  away  the  money 
wliich  he  held  for  that  purpose.  The  indorser  was  discharged.  Lord  CI.  /'.'yiv,  de- 
livering the  opinion,  and  Heath  and  J!ook-c,  JJ.  concurring.  Althongli  the  circum- 
Btances  of  the  two  cases  were  not  precisely  similar,  yet  there  was  not  suflicieni  dilVer- 
encc  to  reconcile  both.     In  both  the  maker  was  insolvent,  and  even  if  the  insolvency 


CH.  XIII.]  EXCUSES   FOR   WANT   OF   NOTICE.  557 

it  would  be  where  the  indorser  mdorses  for  the  accommodatioa 
of  a  prior  party  or  a  third  person. (s) 

The   case   is   different  where   the   drawer5(^)    or   the  indors- 

were  not  actually  known  to  the  indorser  at  the  time  of  indorsing,  in  the  latter  case 
this  fact  was  of  no  importance.  It  is  somewhat  remarkable,  that  in  the  latter  case 
no  mention  whatever  was  made  of  the  former,  although  there  were  three  judges  at 
least  sitting  in  both  the  cases.  But  De  Berdt  v.  Atkinson  must  be  considered  as 
overruled.  In  Leach  v.  Hewitt,  4  Taunt.  731,  Ckambre,  J.  said:  "Mr.  Barnes,  the 
learned  editor  of  my  brother  Bayley's  work  on  Bills  of  Exchange,  has  subjoined,  on 
p.  136,  a  very  sensible  note  upon  the  case  of  De  Berdt  v.  Atkinson.  He  says  :  '  The 
court  appear  to  have  proceeded  on  a  misapplication  of  the  rule  which  obtains  as  to 
accommodation  acceptances  ;  in  those  cases  the  drawer,  being  himself  the  real  debtor, 
acquires  no  right  of  action  against  the  acceptor  by  paying  the  bill,  and  sutlers  no  injury 
from  want  of  notice  of  non-payment  by  the  acceptor.  But  in  tliis  case  the  maker  was 
the  real  debtor,  and  the  payee  a  mere  security,  having  a  clear  right  of  action  against 
the  maker,  upon  paying  the  note ;  and  therefore  entitled  to  notice,  to  enable  him  to 
assert  that  right."  In  Free  v.  Hawkins,  8  Taunt.  92,  96,  Park,  J.,  interrupting  coun- 
sel, said  :  "  De  Berdt  v.  Atkinson  has  been  shaken  in  every  printed  book,  and  in  the 
practice  of  every  one  at  tlie  bar."  So  Muule,  J  ,  in  Sands  v.  Clarke,  8  C.  B.  751,  760, 
says,  "that  case  has  been  dissented  from,  if  not  distinctly  overruled  "  ;  Lord  Denman, 
C.  J.,  Terry  v.  Parker,  6  A.  &  E.  502,  507 ;  Bissell,  J.,  Holland  v.  Turner,  10  Conn. 
308.  See  also  the  remai-ks  of  Marshall,  C.  J.  on  these  cases,  in  French  v.  Bank  of 
Columbia,  4  Cranch,  141,  162.  The  case  of  Do  Berdt  v.  Atkinson  is  inconsistent  with 
the  cases  cited  in  the  previous  notes  to  this  chapter. 

(s)  Leach  V.  Hewitt,  4  Taunt.  731 ;  Carter  v.  Flower,  16  M.  &  W.  743.  In  this  case 
the  declaration  alleged,  that  neither  at  the  time  when  the  note  was  made,  nor  after- 
wards, and  before  it  became  due,  nor  when  it  became  due,  and  on  presentment  for  pay- 
ment, had  the  maker  or  the  payee  any  effects  of  the  defendant  in  his  hands,  nor  was  there 
any  consideration  or  value  for  the  making  of  the  note,  of  the  payment  thereof,  or  its 
indorsement  by  the  payee  to  the  defendant,  and  that  the  defendant  had  not  sustained 
any  damage  by  reason  of  his  not  having  had  notice  of  the  non-payment  of  the  note. 
On  special  demurrer  it  was  held,  that  against  an  indorser  the  declaration  was  bad,  for 
not  stating  a  sufficient  excuse  for  want  of  notice  ;  for,  consistently  with  the  allegations, 
the  note  might  have  been  indorsed  by  the  defendant  for  the  accommodation  of  one  of 
the  prior  parties  to  it,  or  some  third  person,  in  which  case  the  defendant  would  be  en- 
titled to  notice 

[t)  Sharp  V.  Bailey,  9  B.  &  C.  44,  4  Man.  &  R.  4,  where  it  was  also  held  that  the 
fact  that  the  drawer  drew  the  bill  payable  at  his  own  house  is  evidence  that  the  accept- 
ance was  for  his  accommodation.  Sed  quaere.  Reid  v.  Morrison,  2  Watts  &  S.  401  ; 
New  Orleans  Bank  v.  Harper,  12  Rob.  La.  231  ;  Lacoste  v.  Harper,  3  La.  Ann.  385; 
Gillespie  v.  Cammack,  id.  248.  See  Nicolet  v.  Gloyd,  18  La.  417  ;  Evans  v.  Norris,  1 
Ala.  511.  In  Ex  parte  Heath,  2  Ves.  &  B.  240,  Lord  Eldon  said  :  "  The  courts  were 
obliged  necessarily  to  decide  that,  if  bills  were  accepted  for  tlie  accommodation  of  the 
drawer,  and  there  was  nothing  but  that  paper  between  them,  notice  was  not  neces- 
sary, the  drawer  being,  as  between  him  and  the  acceptor,  first  liable  ;  but  if  bills  were 
drawn  for  the  accommodation  of  the  acceptor,  the  transaction  being  for  his  benefit,  there 
must  be  uoticB  without  effects.  And  if,  in  the  result  of  various  dealings,  the  surplus 
of  accommod.-ition  is  on  the  side  of  the  acceptor,  he  is,  with  regard  to  the  drawer, 
exactly  in  the  situation  of  an  acceptor  having  effects,  and  the  failure  to  give  notice  may 
be  equally  detrimental." 

47* 


558  NOTES   AND   BILLS.  [CH.  XDI. 

er,(M)  is  the  party  accommodated  ;  because  he  can  have  no  rem- 
edy against  the  acceptor  or  maker,  inasmuch  as  his  name  was 
put  upon  the  paper  merely  to  give  it  credit  as  regards  third  par- 
ties, and  because  he  is  bound  to  provide  the  maker  or  acceptor 
with  funds. 

But  although  a  party  may  make  a  note  for  the  accommodation 
of  an  indorse!*,  it  is  said  he  is  not  entitled  to  notice  of  the  dis- 
honor of  the  note  at  the  place  where  it  is  payable,(?;)  notwithstand- 
ing he  may  have  a  remedy  against  the  indorser,  and  his  liability 
to  injury  is  as  great  as  that  of  an  accommodation  drawer  or  in- 
dorser, because  notice  is  never  required  to  be  given  to  a  party 
who  is  primarily  liable  as  regards  third  parties.  This  must  be 
true  so  far  that  the  maker  is  not  discharged  by  want  of  notice, 
because  no  maker  is.  It  may  be,  however,  that  such  a  maker 
would  be  considered  as  standing  in  the  relation  of  guarantor  to 
a  holder  who  knew  all  the  facts,  and  that  he  would  be  entitled  to 
reasonable  notice,  and  would  be  discharged  if  he  could  show 
actual  injury  caused  by  negligence  in  this  respect. 

It  is  obvious  that  many  of  the  principles  with  respect  to  excuse 
for  want  of  presentment  must  apply  equally  to  failure  to  give  no- 
tice ;  yet  it  may  be  well,  perliaps,  to  state  them  in  this  place, 
although  it  must  necessarily  involve  some  repetition  of  what  has 
already  been  said. 

Where  the  holder  is  dead,  and  no  executor  or  administrator  is 
appointed  before  the  maturity  of  the  bill  or  note,  as  the  indorser 
will  not  be  discharged  by  failure  to  present  at  maturity,(it')  so  the 
same  facts  will  of  course  constitute  a  valid  excuse  for  not  giving 


(u)  Reid  V.  Morrison,  2  Watts  &  S.  401 ;  Shrincr  i,-.  Keller,  25  Penn.  State,  61  ;  Archer, 
J.,  Clopper  V.  Union  Bank,  7  Harris  &  J.  92,  102.  In  Torrey  v.  Foss,  40  Maine,  74, 
notice  to  the  indorser  was  held  unnecessary,  althoiij,'h  at  the  maturity  of  tiie  notes  the 
maker  was  indebted  to  the  indorser.  Tcnneij,  J.  said  :  "  In  the  case  before  us,  notwith- 
standing a  balance  was  in  the  hands  of  the  maker  of  the  notes,  by  tlio  agreement  be- 
tween him  and  the  defendant,  the  paper  was  to  be  provided  for  by  other  means  of  the 
defendant,  and  at  no  time  was  it  expected  that  this  balance  was  to  bo  approjjriatcd  for 
the  payment,  and  the  case  is  to  be  treated  as  it  would  be  if  nothing  was  in  the  maker's 
hands  belonging  to  him.  After  the  agreement  between  them,  such  as  the  evidence 
shows  that  it  was,  it  would  have  been  an  absurd  expectation  on  the  part  of  the  defend 
ant,  that,  because  the  maker  of  tiic  notes  was  owing  him  a  sum  sliort  of  two  hundred 
dollars,  he  should  have  transmitted  funds  to  the  bank  suflicicnt  to  meet  the  two  notei 
which  he  had  signed."     The  amount  of  the  notes  was  $  887. 

(f)  Hansbrougli    r.  Gray,  3  Gratt.  356. 

{w)   Sujira,  p.  444. 


CH.  XIII.]  EXCUSES    FOR   WANT    OF   NOTICE.  559 

notice  until  after  actual  prcscntmcnt,(a;)  provided  such  present- 
ment be  made  within  a  reasonable  time  after  the  appointment  of 
the  executor  or  administrator.  The  same  rule  has  been  applied 
where  a  note  liad  been  left  with  an  agent  to  collect,  who  died 
four  days  before  its  maturity,  after  a  sickness  of  more  than 
a  month.  Tlie  note  was  locked  up  in  a  desk,  where  it  remained 
nearly  a  month  after  his  death ;  and  the  executrix,  immedi- 
ately upon  its  discovery,  caused  it  to  be  presented  and  imme- 
diate notice  to  be  given,  which  was  held  sufficient  to  charge  th© 
indorser.(7/) 

Where  a  note  is  void  as  against  the  maker,  no  presentment 
would  seem  to  be  necessary, (z)  because  there  is  no  one  upon 
whom  demand  can  be  made.  This  reason  does  not  apply  to 
want  of  notice  to  the  indorser  that  the  note  was  not  paid  when 
due ;  yet  we  do  not  think  that  such  notice  would  always  be  ne- 
cessary. Thus,  where  the  note  is  void,  and  the  indorser  looked 
to  is  the  first,  or  only  indorser,  he  would  be  held  without  no- 
tice ;  {a)  and  for  the  same  reason  the  party  who  indorsed  a  note 
next  after  a  forged  indorsement  might  be  held  to  subsequent  hold- 
ers without  demand  on  the  party  whose  note  is  forged,  or  notice 
of  his  refusal ;  because,  however  it  might  be  in  fact,  the  law  can- 
not presume  that  one  whose  name  is  forged  to  an  instrument 
would  pay  it. 

It  has  frequently  been  remarked,  that  the  indorsement  of  a 
note  is  like  drawing  a  bill  on  the  maker,  and  an  acceptance  by 
the  latter.  If  the  analogy  is  to  be  carried  out,  the  first  valid  in- 
dorsement of  a  void  note  would  seem  to  be  either  like  an  unac- 
cepted bill  without  any  drawee,  or  a  bill  drawn  without  any 
funds,  or  the  expectation  of  having  any.     In  the  latter  case  wo 

(x)  White  V.  Stoddard,  11  Gray, 

(.y)  Duggan  v.  King,  Rice,  239. 

{z)  Supra,  p.  444. 

(a)  In  Copp  V.  M'Dugall,  9  Mass.  1,  the  indorser  was  held  without  any  notice,  and 
the  evidence  that  the  note  was  void  for  usury  appears  to  have  been  a  recognition  by 
the  defendant,  an  indorser,  of  its  illegality.  In  Chandler  v.  Mason,  2  Vt.  193,  the  in- 
dorser was  held  without  notice  being  given,  as  appears  by  a  remark  of  Hutchinson,  J., 
p.  195.  The  note  was  void  on  account  of  want  of  consideration.  In  Gray  v.  Bell,  3 
Rich.  71,  O'Neall,  J.  thought  that  tiie  indorser  of  a  note  negotiated  when  overdue 
was  to  be  regarded  as  a  new  maker,  or  as  a  drawer  without  funds,  and  not  entitled  to 
demand  or  notice.  No  notice  is  necessary  to  be  given  to  an  indorser,  where  the  bill  is 
not  drawn  on  a  proper  stamp.  Gundy  v.  Marriott,  1  B.  &  Ad.  696,  where  the  bill  had 
been  Hccepted. 


560  NOTES  AND   BILLS.  [CH.  XIIL 

have  seen  that  no  notice  is  necessary ;  and  in  the  former,  the  in- 
strument is  not  a  bill,  but  may  be  treated  as  a  promissory  note ; 
in  which  case  no  notice  would  be  necessary,  because  the  drawer 
is  the  party  primarily  liable. 

In  one  case  it  was  held  that  a  party  who  indorsed  a  bill  pur- 
porting to  be  drawn  by  an  agent  on  his  principal,  both  of  whom 
were  fictitious  persons,  was  entitled  to  notice  ;  (b)  but  it  appeared 
that  the  indorsement  was  made  for  the  accommodation  of  a  third 
party,  who  was  therefore  liable  over  to  the  indorser.(f)  But, 
even  if  the  indorser  had  been  aware  of  the  non-existence  of  the 
drawer  and  drawee  when  he  put  his  name  upon  the  note,  he 
would  not  probably  have  been  considered  entitled  to  notice  ;  (d) 
because  he  would  be  a  partaker  in  an  act  well  calculated  to  de- 
ceive any  party  who  might  subsequently  purchase  the  instrument, 
and  might  prevent  the  purchaser  from  inquiring  as  to  the  sig- 
nature of  the  drawer  ;  because  the  indorser  had  held  out  the 
instrument  as  genuine. 

It  may  also  be  remarked,  that  the  indorser  is  certainly  liable, 
whether  he  knows  that  the  maker  or  drawer  are  actual  persons 
or  not,  since  an  indorsement  is,  as  will  be  seen  hereafter,  a 
warranty  of  the  genuineness  of  the  antecedent  signatures. (e) 
Tlie  only  question  is,  indeed,  whether  his  liability  is  that  of  an 
ordinary  indorser,  or  that  of  a  maker  of  a  new  note. 

Another  important  ground  for  the  denial  of  all  right  in  an  in- 
dorser to  require  demand  of  the  maker  and  notice  of  dishonor 
exists  where  the  indorser,  before  maturity,  has  received  an  assign- 
ment of  all  the  maker's  effects,  to  secure  him  for  the  liability 
incurred  by  him  as  indorser.  And  the  reasons  why  this  fact  de- 
prives tlie  indorser  of  his  right  to  demand  and  notice  are,  first, 
that  he  has  thereby  in  effect  prevented  the  holder  from  obtaining 
the  amount  of  the  note  from  the  maker,  because  he  has  taken 
into  liis  hands  all  the  available  means  which  the  latter  possessed 
of  paying  the  debt ;  consequently,  he  must  be  regarded  as  hold- 
ing out  to  the  party  who  would  ordinarily  be  required  to  make 
a  due  demand  and  give  regular  notice,  that  he,  the  indorser,  has 


(b)  Lcnoh   r.  Hewitt,  4  Taunt.  731.     The  ojjinions  in  tliis  case  are  short,  and  not 
very  satisfiictory. 

(c)  PmLr,  n..  Carter  v.  Flower,  16  M.  &  W.  747. 

(t/)   Green,  J.,  Farmers'  Bank  v.  Vanmeter,  4  Rand.  Va.  553,  561. 
(c)  Infra,  Cliapter  on  Indorscnaent. 


CH.  XIII.]  EXCUSES    FOR   WANT    OF   NOTICE.  561 

become  iiriinarily  responsible  for  tbe  debt.(/)  And,  bocondly, 
tbat  baviiig  already  received  from  tbe  maker  all  tbat  tbe  maker 
can  give,  be  cannot  recover  anytbing  more  from  bim  by  way  of 

(/)  In  Coincy  v.  Da  Costa,  1  Esp.  302,  at  a  meeting  of  the  creditors  of  the  makers, 
it  was  proposed  to  assign  by  deed  all  their  eft'ects  to  trustees  for  the  benefit  of  tlio 
creditors.  Afterwards  the  defendant,  to  avoid  expense,  agreed  to  become  indorser  of 
notes  at  different  dates,  to  he  given  to  the  creditors  for  the  amount  of  their  respective 
compositions  ;  and  the  notes  were  accordingly  made  payable  to  his  order,  and  indorsed 
by  him.  He  took  effects  of  the  insolvents  to  the  amount  of  the  composition.  The 
note  in  suit,  being  one  of  those  indorsed  in  this  manner,  was  due  Dec.  6th,  but  no  no- 
tice was  given  to  the  defendant  until  Jan.  14th.  The  indorser  was  held.  Bitl/er,  J. 
said  :  "  The  present  was  not  the  common  case  of  the  maker  of  a  note  making  default, 
and  no  notice  given  ;  the  defendant  made  himself  liable  at  all  events,  the  creditors  in- 
sisted ou  it ;  he  therefore  was  solely  liable,  and  being  so,  could  not  avail  himself  of 
want  of  notice."  In  Bond  v.  Farnham,  .5  Mass.  170,  notice  was  left  on  the  day  of  ma- 
turity at  a  store  formerly  occupied  by  the  defendant,  but  not  at  that  time  in  his  posses- 
sion. Three  days  afterwards  he  was  notified  The  defendant  having  indorsed  several 
notes  for  the  maker  besides  the  one  in  suit,  the  latter  assigned  to  him,  as  security  for 
the  indorsements,  all  his  property,  which  was  not,  however,  sufficient  to  secure  the  dc 
fetidant  against  the  notes,  exclusive  of  the  one  in  suit.  The  maker  was  insolvent  ai 
maturity.  Parsons,  C.  J.,  after  stating  that  the  notice  given  was  insufficient,  said  :  "  We 
are  satisfied  that  the  verdict  for  the  plaintiff  is  right;  because,  under  the  circum- 
stances of  this  case,  the  defendant  had  no  right  to  insist  on  a  demand  upon  the  maker. 
It  appears  that  he  knew  such  a  demand  must  be  fruitless,  as  he  had  secured  all  the 
property  the  maker  had,  and  as  he  secured  it  for  the  express  purpose  of  meeting  this 
and  his  other  indorsements,  he  must  be  considered  as  having  waived  the  condition  of 
his  liability,  and  as  having  engaged  with  the  maker,  on  receiving  all  his  property,  to  take 
up  his  note.  And  the  nature  or  terms  of  the  engagement  cannot  be  varied  by  an  event- 
ual deficiency  in  the  property,  because  he  received  all  there  was."  See  this  case  com- 
mented upon  infra,  p.  ,568,  note  o.  In  Barton  v.  Baker,  1  S.  &  R.  334,  one  member  of 
a  firm  wliich  made  the  note  assigned  all  his  estate  to  the  defendant,  to  indemnify  him 
for  certain  advances  of  money,  and  for  indorsements  on  account  of  the  firm,  one  of 
which  indorsements  was  in  suit.  This  was  held  to  be  a  waiver  of  laches  in  giving  notice. 
Tilyhman,  C.J.  said:  "Now,  by  the  taking  of  this  assignment,  it  is  not  unreasonable  to 
presume  that  the  defendant  took  upon  himself  the  payment  of  the  indorsed  notes,  espe- 
cially as,  when  he  did  receive  notice  ten  days  after  the  note  fell  due,  although  he  knew 
and  remarked  that  it  was  out  of  time,  he  did  not  deny  his  responsibility,  but  said  that 
his  ability  to  pay  would  depend  on  the  arrival  of  a  vessel.  I  agree,  therefore,  with  Bond 
V.  Farnham,  5  Mass.  170,  where  it  was  held  that,  in  such  case,  the  indorser  dispenses 
with  notice."  See  also  the  remarks  of  Gibson,  C.  J.,  in  Kramer  v.  Sandford,  4  Watts 
&  S.  328. 

In  Bank  of  South  Carolina  v.  Myers,  1  Bailey,  412,  the  defendant  had  taken  from 
the  maker  a  confession  of  judgment  which  covered  the  whole  estate  of  the  latter.  It 
was  held  competent  for  the  plaintiff  to  show,  by  parol  evidence,  that  the  confession  of 
judgment  was  intended  to  secure  the  indorser  against  his  liability  on  the  indorsement, 
that  this  was  a  waiver  of  demand  and  notice,  and  that  the  defendant  was  liable,  not- 
withstanding laches  in  giving  notice.  Colcock,  J.  said  :  "  Whether  notice  may  be  dis- 
pensed with  in  a  case  where  the  indorser  takes  collateral  security,  which  covers  tho 
whole  of  the  maker's  estate,  whereby  he  not  only  enables  himself  to  pay  the  debt,  but 
interposes  an  insurmountable  obstacle  to  the  recovery  of  the  holder,  must  be  determined 

Vol.  I.— 2  L 


oQ2  NOTES   AND   BILLS.  [CH   XIIT. 

indemnity,  and  therefore  cannot  be  injured  by  losing  an  opportu- 
nity to  demand  indemnity. 

The  rule  we  consider  to  be  established  by  the  weight  of  au- 

by  referring  to  the  reason  of  the  rule,  and  its  application  to  such  a  case.  The  reason 
of  the  rule  is  stated  by  all  •writers  on  the  subject  to  be,  that  the  parties  to  the  note  or 
bill  niav,  respectively,  take  the  necessary  measures  to  obtain  payment  from  the  parties 
respectively  liable  to  them  ;  and  if  notice  be  not  given,  it  is  a  presumption  of  law  that 
the  drawer  and  indorsers  arc  prejudiced  by  the  omission  ;  and  it  is  on  this  principle  that 
notice  of  non-acceptance  and  non-payment  are  required.  On  the  case  made,  it  is  at 
once  obvious  that,  if  notice  is  given  to  the  indorser,  he  is  not  benefited  by  it.  He  has 
already  secured  himself  as  far  as  it  is  practicable  for  him  to  do  so.  He  had  obtained  an 
operative  lien  on  all  the  maker's  estate,  as  well  as  the  means  of  taking  his  body,  if  he 
should  think  that  proper  or  necessary.  If  an  individual,  who  is  not  content  to  rely  on  the 
security  which  the  rules  of  law  afford  him,  thinks  proper  to  protect  himself,  surely  there 
can  be  no  reasonable  objection  interposed  to  his  doing  so,  provided  he  does  not  thereby 
interfere  with  the  rights  of  others ;  but  if  in  his  arrangements  he  destroys  the  operation 
of  a  rule  of  law  which  may  be  beneficial  to  another  whom  he  has  induced  to  enter 
into  the  contract,  it  cannot  be  doubted  that  he  should  respond  in  damages  to  such  per- 
son. Now  this  previous  judgment,  covering  the  whole  of  the  maker's  property,  most 
manifestly  prevents  the  plaintiff  in  this  case  from  proceeding ;  for  the  decisions  of  out 
courts  always  have  been,  that  the  sheriff  must  pay  over  money  to  the  oldest  judgment 
and  execution  creditors.  It  would,  therefore,  have  been  a  nugatory  act,  in  such  a  case, 
to  have  forced  a  sale  of  the  maker's  property.  This  interposition  of  the  indorser  may, 
I  think,  be  considered  in  the  li<^ht  of  a  legal  fraud  ;  for  it  might  in  fiict  be  made  use  of 
to  effect  a  moral  fraud.  I  mean  not  to  intimate  that  such  has  been  the  case  here.  But 
suppose,  in  such  a  case,  that  the  holder  should  not  discover  the  purpose  for  which  judg- 
ment had  been  given,  would  he  not  be  defeated  in  his  proceedings  to  recover  his  debt  ? 
There  certainly  is  nothing  to  prevent  the  indorser  from  selling  all  the  proiicrty  under  his 
judgment,  and  disposing  of  it  as  he  pleases.  And  take  the  case  where  all  the  parties 
are  apprized  of  the  object  and  intention  of  the  maker  in  confessing  a  judgment  to  secure 
the  indorser,  if  it  affords  an  additional  security  to  the  holder,  it  is  by  diminishing  the 
old  security;  and  it  is  like  an  undertaking  on  the  part  of  the  indorser,  in  addition  to 
Jiis  own  responsibility,  to  pay  the  debt  out  of  the  maker's  funds  which  are  thus  placed 
at  his  disposal,  or  at  least  subject  to  his  control."  After  commenting  upon  the  cases 
cited  previously  in  this  note,  the  judge  concluded  by  saying :  "  We  are  ourselves 
nnanimously  of  opinion  that  these  cases,  so  far  as  authority  is  important,  are  sufficient; 
and  that  the  reason  of  the  rule  ceasing,  the  rule  itself  is  rendered  inapplicable."  See 
Barrett  v.  Charleston  Bank,  2  McMullan,  191 ;  Stephenson  v.  Primrose,  8  Port.  Ala. 
15.5 ;  Perry  v.  Green,  4  Harrison,  61.  In  Vreeland  v.  Hyde,  2  Hall,  429,  the  makers  had 
made  an  assignment  of  their  property  to  the  defendant  and  another  party  for  the  benefit 
of  their  creditors,  wherein  it  was  stipulated  that,  if  the  defendant  was  liable  on  his  in- 
dorsement of  the  note  in  suit,  the  money  should  be  refunded  to  him  out  of  the  pro- 
ceeds of  the  assignment.  As  was  well  remarked  by  llornblower,  C.  J.,  in  Perry  v. 
Green,  4  Harrison,  61,  this  was  a  sufficient  reason  for  a  judgment  in  favor  of  the  plain- 
tiff, who  had  neglected  to  make  a  demand  for  an  unreasonable  time  ;  although  it  was 
not  adverted  to  by  the  court,  who  decided  the  case  for  the  plaintiff  on  very  questionable 
grounds.  Mechanics'  Bank  v.  Griswold,  7  Wend.  16.''),  where  the  assignment  was  of 
all  the  maker's  property  to  the  defendant  and  one  other,  in  trust,  to  dispose  of  the.  prop- 
erty, collect  the  debts,  and,  after  deducting  the  charges  of  the  trust,  to  pay  the  debts  in 
a  certain  order,  first  satisfying  all  the  notes  and  debts  for  wliieli  the  defeiidai  l  at>d  A  ccr- 


CH.  Xin.]  EXCUSES   FOR  WANT   OF  NOTICE.  563 

thority,  even  where  the  property  assigned  is  insufficient  to  cover 
the  whole  liability  of  the  indorser.(^)  But  there  is  authority  to 
the  effect  that  such  assignment  is  no  waiver  of  due  demand, 
unless  it  is  sufficient  to  entirely  protect  the  indorscr,(/t)  and  an 


tain  firm,  or  either  of  them,  were  liable  as  sureties  or  indorsers  ;  Nelson,  C.  J.,  Spencer 
V.  Harvey,  17  Wend.  489.  See  Bruce  v.  Lytle,  13  Barb.  163;  Johnson,  J.,  Seacord 
V.  Miller,  3  Kern.  55  ;  Benedict  v.  Caffe,  5  Duer,  226,  233 ;  Hosmer,  C.  J.,  Prentiss 
V.  Danielson,  5  Conn.  175,  180;  Duvall  v.  Farmers'  Bank,  9  Gill  &  J.  31.  In 
Denny  r.  Palmer,  5  Ired.  610,  the  judge  refused  to  charge  the  jury,  at  the  request  of 
the  plaintiff,  tliat  if  the  makers  had  conveyed  all  their  property  to  a  trustee,  as  an  in- 
demnity to  the  defendant,  this  was  a  waiver  of  notice.  This  refusal  was  held  correct. 
But  it  appears  by  tlie  facts  tliat  the  conveyance  did  not  comprise  all  the  maker's  prop- 
erty. In  Coddington  v.  Davis,  3  Denio,  16,  the  maker  assigned  all  his  property  to 
one  of  the  plaintiffs,  in  trust,  to  pay  his  debts  according  to  a  certain  order  of  preference, 
and  among  the  first  in  order  was  the  defendant,  for  the  indorsement  sued  on  and  for 
other  debts.  The  defendant  also  signed  an  order  addressed  to  the  trustee,  directing  him 
to  pay  to  the  order  of  the  plaintiffs  all  the  money  as  fast  as  collected,  to  the  extent  of 
tlio  indorsement.  There  was  also  an  express  waiver.  Jewett,  J.  thought  the  assign- 
ment a  waiver  of  notice.  This  case  was  affirmed  in  the  Court  of  Appeals,  1  Comst. 
186,  but  the  court  there  proceeded  upon  the  express  waiver. 

(g)  Bond  v.  Farnham,  5  Mass.  170,  supra,  p.  561,  note /! 

(h)  In  Watkins  v.  Crouch,  5  Leigh,  522,  the  note  in  suit  was  payable  at  a  particular 
place,  and  not  having  been  presented  there,  the  indorscr  was  not  liable.  But  he  had  re- 
ceived an  assignment  of  all  the  maker's  effects ;  and  this,  it  was  contended,  amounted  to 
a  waiver  of  his  right  to  require  a  demand  to  be  made  at  the  specified  place,  and  put  him 
in  the  same  condition  in  which  the  maker  was.  It  was  contended  by  counsel  that  no 
indemnity  was  especially  provided  for  by  the  deed  of  assignment  as  to  the  note  in  suit, 
but  that  it  was  only  provided  for  in  a  general  provision  for  all  the  debts  of  the  assignor. 
The  court  seem,  however,  to  have  considered  it  as  providing  an  indemnity  to  the  in- 
dorser  for  a  fourth  part  of  the  note.  These  foets  were  held  no  waiver  of  the  indorser's 
right  to  require  a  demand  at  the  place  specified,  Brooke,  J.  dissenting.  Carr,  J.  said  : 
"  The  deed  is  made  an  exhibit  in  the  bill  of  exceptions,  and  I  think  may  fairly  be  con- 
sidered a  conveyance  of  all  the  grantor's  property.  It  is  given  for  the  security  of 
several  enumerated  debts,  and  among  others  of  one  fourth  of  the  note  on  which  the  suit 
was  brought.  What  was  the  value  of  the  property,  or  what  proportion  it  bore  to  the 
debts  intended  to  be  sec-ured  by  it,  does  not  appear ;  that  it  was  not  sufficient  to  secure 
the  whole  we  are  obliged  to  conclude When  a  note  is  made  payable  at  a  par- 
ticular place,  proof  of  a  demand  at  the  place  is  indispensable,  in  a  suit  against  the 
indorser.  Did  the  deed  place  the  indorser  completely  in  the  shoes  of  the  maker  ?  I 
should  agree  that  it  did,  if  it  appeared  that  the  property  conveyed  was  sufficient  for  full 
indemnity  against  the  note,  and  was  by  the  deed  appropriated  to  such  indemnity  ;  but 
the  sufficiency  of  the  property  makes  no  part  of  the  case  ;  and  it  appears  by  the  deed  that 
the  trustees  are  not  authorized  to  appropriate  any  part  of  it  to  indemnity  against  more 
than  a  fourth  of  the  note.  It  was  said,  however,  that  the  property,  whether  adequate 
cr  not,  was  all  the  maker  had ;  and  that,  having  thus  become  utterly  insolvent,  there 
could  be  no  hope  of  his  providing  funds  at  the  bank  to  discharge  the  note,  and 
therefore  no  necessity  of  presenting  it.  But  we  see,  from  many  cases,  that  the  most 
perfect  knowledge  of  the  insolvency,  or  even  bankruptcy,  of  the  maker,  docs  not  dis- 
penst  with  a  due  presentment  and  notice  of  dishonor.    He  may  have  friends  or  credit ; 


oC)4  NOTES   AND   BILLS.  [CH.  XUT, 

opinion  has  been  intimated,  that  an  insufficient  assignment  may 

or  the  sagacity  and  vigilance  of  the  indorser  may  discover  other  sources  of  indem- 
nity.   It  is  his  own  affair,  and  he  ought  to  be  the  judge But  it  was  said,  that 

here  the  insolvency  is  produced  by  the  indorser  himself;  that  he  has  appropriated  to 
his  own  use  the  funds  which  might  have  gone  to  discharge  the  note ;  and  that  we 
cannot  suppose  such  a  conveyance  would  be  made  without  an  agreement  between 
the  parties,  that  the  indorser  should  attend  to  the  note,  take  the  maker's  place, 
and  release  him  from  all  further  care  about  it.  I  cannot  perceive  the  correctness  of 
this  reasoning.  Why  should  the  indorser  take  the  maker's  place  ?  Was  it  not  better 
that  he  should  continue  to  hold  his  station  of  collateral  surety  1  Better  botli  for 
himself  and  the  maker  1  He  was  bound  conditionally  for  the  debt,  and  he  might  well 
say  to  the  maker:  '  My  friendship  for  you  has  led  me  into  this  engagement ;  it  is  but 
fair  that  you  secure  me,  so  far  as  you  can  ;  your  property  may  not  pay  a  fourth  of  the 
debt,  yet  it  will  be  something ;  in  the  meanwhile  we  will  continue  to  hold  our  relations 
of  principal  and  surety ;  before  the  note  comes  to  maturity  new  prospects  may  open  upon 
you,  new  friends  may  arise,  new  accessions  of  fortune  may  fall  in ;  and  the  holder  of 
the  note  will  have  to  proceed  with  due  diligence  before  he  can  come  upon  me.'  Is  not 
tliis  the  more  natural  course  ?  And  does  it  invade  any  right  of  the  holder,  or  imposo 
any  hardship  on  him  ?  No  ;  he  has  only  to  attend  to  his  own  interest,  and  pursue  the 
beaten  track  of  due  diligence.  I  cannot  think,  then,  that,  by  the  e.xecution  of  the  deed, 
the  indorser  lost  his  character  of  surety,  and  became  a  principal  debtor;  and  I  am 
of  opinion  that,  in  order  to  charge  him,  it  was  incumbent  on  the  holder  of  the  note 
to  prove,  at  least,  a  presentment  at  the  place  of  payment,  if  not  due  notice  of  8uch 
presentment."  Cabell,  J.  said  :  "  The  indorser,  in  taking  an  assignment  of  property 
sufficient  to  pay  only  part  of  the  note,  did  not  undertake  to  pay  the  residue.  It  may 
be  confidently  asserted,  that  there  is  not,  in  the  terms  of  the  assignment,  any  express 
contract  to  that  effect ;  nor  can  I  see  a  single  circumstance  in  the  whole  transaction 
from  which  such  a  contract  can  be  implied.  The  assignment  of  proi)crty  sufficient  only 
for  the  partial  indemnity  of  the  indorser  was  a  matter  between  him  and  the  maker  of  the 
note.  There  was  no  motive  in  either  of  the  parties  to  that  arrangement,  wliich  could 
induce  a  wish  that  the  indorser  should  waive  the  condition  of  his  liability.  How,  then, 
can  we  imply  such  waiver  in  favor  of  a  person  who  was  no  party  to  tiie  arrangement  1 
How  can  we  imply  it  from  the  mere  fact  of  a  partial  indemnity  ?  Suppose  the  maker 
of  the  note  had  had  no  other  property  but  money,  not  equal,  however,  to  the  amount  of 
the  note,  and  had  put  that  money,  all  he  had,  into  the  hands  of  the  indorser,  to  be  ap- 
plied by  him  to  the  payment  of  the  note,  would  this  have  exempted  the  holder  from  the 
obligation  of  presenting  the  note,  and  giving  notice  of  its  dishonor?  Certainly  not; 
and  I  am  unable  to  see  any  difference  between  the  deposit  of  money  and  the  assign- 
ment of  property,  so  far  as  regards  the  point  under  consideration.  Nor  is  there  any 
resemblance  between  an  indorser  of  a  note  partly  indemnified,  and  the  drawer  of  a 
l)ill  of  exchange,  who  withdraws  his  effects  from  tlie  liands  of  the  acceptor  before  the 
day  of  payment.  In  the  latter  case,  the  drawer  has  no  right  to  expect  that  the  acceptor 
will  pay,  and  therefore  he  is  not  entitled  to  notice.  But  the  indorser's  right  to  notice 
from  the  holder  depends  on  another  principle,  namely,  his  remedy  over  against  the 
maker.  And  this  principle  applies  as  forcibly  to  a  case  where  a  part  only  of  a  note 
remains  unpaid  or  unprovided  for  by  the  maker,  as  where  the  whole  of  it  remains  so 
unpaid  or  unprovided  for.  Again,  the  assignment  in  this  case  was  made  aliout  a  month 
before  the  note  was  to  fall  due.  It  is  impossible  for  us  to  say  that  no  accession  was 
made,  in  that  interval,  to  the  maker's  means  of  p.iyment ;  and,  of  course,  wo  cannot 
say  that  notice  to  the  indorser  would  have  been  unavailing." 


CH.  XIII.]  EXCUSES   FOR   WANT    OF   NOTICE.  565 

be  a  waiver  of  notice,  but  not  of  regular  demand. (z)  It  seems 
to  have  been  held  that  the  assignment,  to  have  the  effect  of  a 
waiver,  must  be  for  the  purpose  of  protecting  the  indorser  from 


(i)  Tucker,  P.,  Watkias  v.  Crouch,  5  Leigh,  522,  547,  who  said :  "  If  the  question 
was  merely  as  to  notice,  I  should  incline  to  think  the  taking  a  conveyance  of  all  his 
property  from  the  maker  ought  to  dispense  with  the  necessity  of  notice.  The  object  of 
notice  to  the  indorser  is  to  put  him  on  the  alert,  to  announce  to  him  that  he  will  be 
looked  to,  and  to  warn  liim  to  take  care  of  himself  And  hence  even  insolvency 
or  bankruptcy  is  no  excuse  for  want  of  notice,  since  it  is  possible  the  indorser  might 
find  some  means  to  save  himself  out  of  the  wreck  of  his  debtor's  fortune,  or  through 
the  assistance  of  his  friends.  But  when  the  indorser  himself,  conscious  of  his  liability, 
is  already  on  the  alert,  and  proceeds  to  take  care  of  himself  with  all  diligence  and 
activity,  and  actually  sweeps  the  whole  estate  of  the  maker  for  his  own  indemnification  ; 
when  he  has  done  this  with  a  knowledge  of  the  maker's  insolvency,  and  after  consult- 
ing with  a  friend  whether  he  had  better  pay  the  note,  or  suffer  it  to  take  its  course,  cui 
bono  shall  the  holder  give  him  notice  ?  Is  it  to  stimulate  his  vigilance,  who  has  proved 
himself  already  so  watchful  1  Is  it  to  warn  him  to  take  care  of  himself,  who  lias  been 
already  on  the  alert,  and  has  swept  ofi^  land,  negroes,  stock,  household  and  kitchen 
furniture,  bonds,  bills,  notes,  and  open  accounts,  and  all  other  property  of  the  maker  'i 
It  were  a  mockery  to  give,  or  to  require  a  notice  to  be  given,  to  one  thus  circum- 
Btanced.  If  payment  of  part,  or  a  promise  to  pay  or  to  see  it  paid,  or  an  acknowledg- 
ment that  it  must  be  paid,  dispenses  with  the  necessity  of  notice,  how  much  stronger  is 
tlie  case  of  one  who  not  only  confesses  his  liability,  by  taking  an  indemnity  providing 
'  for  paying  off"  and  discharging  the  note,'  but  who  takes  a  conveyance  of  every  article 
of  property  held  by  the  maker,  and  thus  prevents  the  maker's  complying,  in  whole  or 
in  part,  with  his  engagement  to  the  holder.  Accordingly,  we  find  the  clearest  authority 
on  this  subject  in  the  courts  of  two  of  our  sister  States,  —  Bond  v.  Farnham,  5  Mass. 
170;  Barton  v.  Baker,  1  S.  &  R.  334, —  in  both  of  which  the  acceptance,  by  the  in- 
dorser from  the  drawer,  of  a  general  assignment  of  his  estate  and  effects,  was  held  to  dis- 
pense with  the  necessity  of  notice.  That  the  assignment  was  made,  in  this  case,  to  a 
trustee,  I  consider  not  at  all  varying  the  case.  But  this  is  not  a  question  as  to  notice. 
In  this  case  the  bill  never  has  been  presented  for  payment,  at  the  places  appointed ; 
and  the  question  is,  whether  this  assignment  of  the  maker's  effects,  for  the  indemnity 
of  the  indorser,  places  him  so  far  in  the  shoes  of  the  maker  as  to  exempt  the  holder,  in 
an  action  against  the  indorser,  from  averring  and  proving  a  demand  at  the  time  and 
place  specified  by  the  bill.  It  seems  to  have  been  admitted  in  the  argument,  that, 
\mless  the  indorser  has  placed  himself  in  the  shoes  of  the  maker,  this  averment  and 
proof  cannot  be  dispensed  with.  This  was  properly  admitted,  upon  the  ground  already 
stated,  that,  as  the  indorser  had  engaged  to  pay  what  was  not  his  own  debt,  at  a  certain 
time  and  place,  the  demand  is  an  essential  part  of  the  plaintiff''s  title,  and  must,  therefore, 
be  averred  and  proved.  The  question,  then,  really  is,  whether  the  indorser  has  placed 
himself  in  the  shoes  of  the  maker,  by  taking  this  indemnity.  The  answer  must,  I 
tliink,  be  in  the  negative.  Had  he  received  funds  ade(iuate  to  the  discharge  of  the 
note,  he  would  indeed  have  been  in  the  shoes  of  the  maker,  and  no  demand  at  the 
place  would  have  been  essential.  But  how  can  he  be  said  to  be  in  the  place  of  the 
maker,  if  the  assignment  is  inadequate  to  the  payment  ?  If  he  was  in  the  shoes  of  the 
maker  by  reason  of  the  assignment,  he  was  so  at  the  instant  of  that  assignment ;  that 
IS  to  say,  he  was  from  that  moment  to  be  considered  the  real  debtor  for  the  whole, 
while  he  received  indemnity  only  for  a  fourth ;  and  an  indemnity,  too,  which  might 

VOL.  I.  48 


56 (i  NOTES   AND    BILLS.  [CH.  XIH. 

his  liability  as  indorser ;  [j)  though  it  would  also  seem  that  the 
general  reason  that  the  indorser  has  prevented  the  holder  from 
obtaining  payment  of  the  maker  might  apply  to  the  case  of  a 
general  assignment,  or  to  one  for  the  express  purpose,  among 


prove  inadequate  even  to  that.  Moreover,  from  that  instant  the  holder  would  have 
been  absolved  from  all  necessity  of  making  a  demand,  or  otherwise  proceedinjj  against 
the  maker,  whatever  might  be  his  subsequent  acquisitions,  by  descent,  by  marriage,  by 
the  fortune  of  trade,  or  otherwise,  I  cannot  think  this  reasonable.  I  cannot  think  such 
an  inadequate  assignment  can  absolve  the  holder  from  his  obligation  to  demand  pay- 
ment, nor  is  there  any  authority  to  sanction  the  position."  It  may,  perhaps,  be  doubted 
whether  it  was  exactly  correct  to  contend  that  the  indorser,  in  this  case,  was  to  be  con- 
sidered in  the  place  of  the  maker.  The  question  really  was,  whether  any  demand  at 
all  was  necessary.  If  none  were  requisite,  then  it  would  be  unimportant  when  or 
where  the  attempt  was  made.  But  it  may  also  happen  that  an  indorser  would  be 
liable  without  a  demand,  when  the  maker  would  not.  Thus  where  a  note  is  made 
payable  at  sight,  it  is  necessary  that  it  should  be  presented  to  tlie  maker  before  he  la 
liable.  But  suppose  a  demand  had  been  waived,  or  excused,  by  the  indorser.  In  that 
case  he  would  be  liable  without  any ;  so  that  less  would  be  required  of  the  holder,  as 
against  the  indorser,  than  as  against  the  maker.  But  in  Denny  v.  Palmer,  5  Ired.  610, 
Ruffin,  C.  J.  seemed  inclined  to  tliink  that  due  notice  was  not  waived  by  the  raero 
assignment  of  all  the  maker's  property. 

{j)  Benedict  v.  Caffe,  5  Duer,  226,  233.  In  this  case  the  presentment  was  held  in- 
sufficient, because  made  at  an  improper  place.  The  makers  luid  made  a  general  assign- 
ment of  their  property,  for  the  benefit  of  their  creditors,  to  the  indorser.  The  terms  of 
the  assignment  were  not  disclosed.  Bosworlh,  J.  said  :  "  If  the  case  had  disclosed  the 
contents  of  tlie  assignment,  it  might  have  ajipeared  to  be  a  general  assignment  of  all  tho 
property  of  the  assignors  to  the  first  indorser,  upon  trusts,  and  among  others,  to  first  pay 
all  notes  made  by  the  assignors,  on  which  he  had  been,  or  might  be,  made  liable  as 
indorser.  If  so,  Medianics'  Bank  v.  Griswold,  7  Wend.  165,  sitjint,  p.  .i62,  note/,  is  an 
authority,  that  neither  demand  nor  notice  would  have  been  necessary  to  charge  him,  as 
indorser.  But  the  case  does  not  disclose  the  terms  of  the  assignment."  In  Creamer  j;. 
Perry,  1 7  Pick.  332,  by  the  statement  of  facts  as  given  by  the  reporter,  it  appears  that  the 
maker  liad  assigned  all  his  property  to  the  indorser  and  one  other  jiarty,  for  the  benefit 
of  his  creditors  ;  and  that  the  defendant  was  a  preferred  creditor  and  fully  secured  for  all 
his  demands  and  liabilities.  There  were  laches  in  demand  and  notice.  Tlie  plaintiff 
was  nonsuited.  Shaw,  C.  J.  said  :  "  On  the  first  ground,  we  think  that  the  most  wiiich 
could  I)e  made  of  the  evidence  is,  that  after  tliis  note  was  made,  but  several  months 
before  it  became  due,  the  promisor  made  an  assignment  to  trustees,  upon  trust,  among 
other  things,  to  secure  the  defendant  for  all  debts  due  to  him  from  the  protnisor,  and  to 
indenmify  the  defendant  against  all  his  liabilities We  think  tiie  cflect  of  tliis  as- 
signment was,  to  secure  and  indemnify  him  against  his  legal  liabilities  ;  and  as  his  liability 
as  indorser  on  this  note  was  conditional,  and  depended  upon  the  contingency  of  his  having 
seasonable  notice  of  its  dishonor,  his  claim  upon  the  property  dejiended  upon  the  like  con- 
tingency." Either  the  learned  judge  overlooked  tho  fact  that  the  assignment  was  of  all 
the  maker's  property,  or  else,  we  think,  tliis  case  must  be  considered  as  overruling  Bond 
V.  Farnliam,  .'j  Mass.  170,  which  case,  however,  is  not  mentioned  or  commented  upon. 
In  tlie  latter  case,  the  a.ssignment  to  the  defendant  was  "  for  his  security  against  his  in- 
dorsements." This  must  mean  "his  liabilities  as  indorser";  and  we  do  not  see  how 
the  two  cases  can  bo  reconciled  on  this  point. 


CH  Xin.]  EXCUSES   FOR  WANT   OF  NOTICE.  567 

others,  of  covering  the  indorsement ;  at  least,  parol  evidence  is 
admissible,  we  think,  to  show  that  the  indorsements  were  in 
tended  to  be  covered. (A;)  It  is  incumbent  on  the  party  who  relies 
upon  a  general  assignment  of  all  the  maker's  effects  (no  partic- 
ular indorsement  being  specified),  as  a  waiver  of  demand  and 
notice,  to  prove  satisfactorily  that  the  whole  estate  was  assigned ; 
because  this,  being  an  exception  to  the  general  rule,  should  be 
strictly  proved. (/) 

It  will  be  seen  that  one  objection  to  this  doctrine  of  waiver  is, 
that  the  maker,  after  having  made  the  assignment,  may,  by  de- 
scent, by  marriage,  by  the  fortune  of  trade  or  otherwise,  have 
come  into  possession  of  some  property,  and  that  the  indorser 
should  be  entitled  to  the  benefit  of  these  facts. (w)  These 
chances  may  be,  however,  among  the  minutiae  which  the  law 
does  not  recognize  ;  (n)  but  still,  if  they  could  be  proved  to  exist, 
there  are  strong  reasons,  we  think,  to  consider  them  as  doing 
away  with  the  waiver. 

The  right  of  an  indorser  to  receive  notice,  when  he  has  pos- 
sessed himself  of  all  the  property  of  the  maker  or  acceptor, 
must  be  determined  by  different  principles  from  those  which 
apply  to  the  case  of  an  indorser  to  whom  the  maker  or  acceptor 
has  assigned  special  property  by  way  of  security  for  his  indorse- 
ment. 

There  are  many  cases  in  which  this  matter  of  taking  security 
before  maturity,  by  the  indorser,  is  discussed ;  and  there  is  no 
little  confusion  and  uncertainty  in  the  law  on  this  point.  Ac- 
cording to  some  authorities,  if  the  indorser,  before  maturity, 
obtain  from  the  maker  effects  sufficient  to  secure  the  whole  lia- 
bility incurred  by  him  on  account  of  any  particular  indorse- 
ment, and   the  effects  are  received   for  that  purpose,  both  de- 


(k)  Bank  of  South  Carolina  v.  Myers,  1  Bailey,  412,  sitjn-a,  p.  561,  notey^ 

(/)  Diivall  V.  Farmers'  Bank,  9  Gill  &  J.  31.     Sec  Denny  v.  Palmer,  5  Ircd.  610. 

(m)  Tucker,  P.,  supra,  p.  565,  note  i.  Carr,  Cabell,  JJ.,  supra,  pp.  563,  564, 
note  h. 

(n)  This  objection  does  not  seem  to  have  been  much  considered  by  the  courts  in  the 
cases  cited  supra.  Brooke,  J.,  in  his  dissenting  opinion,  in  Watkins  v.  Crouch,  5  Leigh, 
522,  539,  said  :  "  If  there  was  any  new  accession  of  property,  he  was  as  well  prepared 
to  take  care  of  himself  as  if  the  note  had  been  duly  presented."  In  Kramer  v.  Sand 
ford,  4  Watts  &  S.  328,  Gibson,  C.  J.  said  :  "  The  chance  of  the  maker's  acquirement 
of  other  property,  to  which  he  might  resort,  if  the  funds  in  his  hands  should  fall  short, 
is  so  inconsiderable  as  to  fall  within  the  maxim  de  minimis." 


668  NOTES   AND  BILLS.  [CH.  XHI. 

maud  and  notice  are  waived ;  on  the  ground  that  the  indorser 
has,  bj  his  own  act,  obtained  all  the  benefit  which  the  law  of 
demand  and  notice  confers,  and  that  therefore  there  is  no  reason 
for  the  requirement  of  these  conditions. (o)     It  seems  to  be  clear, 


(o)  In  Bond  v.  Farnham,  5  Mass.  170,  Parsons,  C.  J.  said:  "We  do  not  mean  to 
be  understood  that,  when  an  indorser  receives  security  to  meet  particular  indorse- 
ments, it  is  to  be  concluded  that  he  waives  a  demand  or  notice  as  to  any  other  indorse- 
ments. But  we  are  of  opinion  that,  if  he  will  apply  to  the  maker,  and,  representing 
himself  liable  for  the  payment  of  any  particular  indorsements,  receives  a  security  to 
meet  them,  he  shall  not  afterwards  insist  on  a  fruitless  demand  upon  the  maker,  or  on 
a  useless  notice  to  himself,  to  avoid  payment  of  demands  which,  oi.  receiving  security, 
he  lias  undertaken  to  pay."  This  can  only  be  considered  as  a  dictum  with  reference  to 
the  point  now  under  consideration,  and  it  does  not  appear  clearly  what  the  language 
really  means.  In  Mead  v.  Small,  2  Greenl.  207,  the  head  note  is  as  follows  :  "  If  the  in- 
dorser of  a  note  has  protected  himself  from  eventual  loss  by  taking  collateral  security  of 
the  maker,  it  is  a  waiver  of  his  legal  right  to  require  proof  of  demand  on  the  maker,  and 
notice  to  himself."  Mdlen,  C.  J.  said  :  "It  appears  the  maker  was  destitute  of  all  per- 
sonal property  liable  to  attachment ;  that  the  defendant  received  and  held  a  mortgage 
of  the  maker's  real  property,  sufficient  to  secure  the  payment  of  said  note ;  and  which 
was  made  for  that  express  purpose.  These  facts  present  a  stronger  case  in  favor  of  the 
plaintiff  than  those  in  Bond  v.  Farnham,  5  Mass.  170.  There  the  property  pledged 
was  not  a  sufficient  indemnity  to  the  indorser,  but  it  was  all  which  the  maker  had. 

Here  it  is  proved  to  be  sufficient But  if  the  indorser  has  protected  himself  from 

eventual  loss  by  his  own  act  in  taking  security  from  the  maker,  such  conduct  must  bo 
considered  as  a  waiver  of  the  legal  right  to  require  proof  of  demand  and  notice.  And 
we  arc  of  opinion,  accordingly,  that  the  facts  before  us  clearly  show  such  a  waiver  in 
the  present  case."  But  by  the  facts  of  the  case  it  appears  that,  when  the  defendant 
transferred  the  note  to  the  party  who  transferred  it  to  the  plaintiff,  it  was  agreed  that 
the  maker  slioukl  not  be  sued,  not  having  any  personal  property  liable  to  attachment ; 
and  that  if  the  latter  could  not  pay,  the  note  should  be  returned  to  the  defendant, 
wiio  held  the  mortgage.  These  facts  may,  as  will  be  shown  hereafter,  have  an 
important  bearing  on  the  case.  In  Marshall  v.  Mitchell,  3.5  Maine.  221,  Welles,  J. 
eaid  :  "If  the  indorser  has  security  in  his  own  hands  fully  equal  to  his  liability,  lie 
can  suffer  no  loss  by  the  want  of  demand  and  notice ;  therefore  he  has  been  held 
liable,  in  such  case,  without  proof  of  those  facts.  And  if  the  security  is  taken 
before  the  maturity  of  the  note,  it  cannot  be  material  whether  it  was  before  or  after 
its  negotiation.  In  either  case  it  furnishes  an  indemnity."  This  is  also  a  dictum. 
There  is  also  a  dictum  of  llosim-.r,  C  J.,  Prentiss  r.  Danielson,  5  Conn.  175,  that, 
"  If  an  indorser  receives  security  to  meet  a  particular  iiulorscmcnt,  he  waives  a 
demand  and  notice  in  respect  of  that  indorsement,  but  not  us  to  any  other."  In 
Durham  v.  Price,  5  Yerg.  300,  there  had  been  laches  in  nniking  demand  and  giving 
notice.  There  was  evidence  that  the  indorser  was  fully  indemnified,  and  also  |)romiscd 
to  pay  after  maturity.  The  judge  instructed  the  jury,  if  the  defendant  had  full  indem- 
nity, or  promised  to  pay  after  maturity,  with  full  knowledge  of  all  the  facts,  to  find 
for  the  plaintiff.  A  verdict  for  the  plaintiff  was  sustained.  In  Barrett  v.  Charles- 
ton Bank,  2  McMullan,  191,  a  bond  and  mortgage  was  assigned  by  the  maker  to  a 
third  jtarty,  in  trust,  to  secure  the  defendant  as  indorser,  if  tiie  nuiker  should  f:rl  to  pay 
the  note.  The  notice  was  insufficient  because  it  was  deposited  in  the  post-office,  the  in- 
dorser and  holder  both  living  in  the  same  place.     The  indorser  was  held      L'tam    J. 


CH.  XUI.]  EXCUSES    FOR   WANT    OF   NOTICE.  569 

however,  that  no  court  would  hold  such  reception  of  indemnity 
to  be  a  waiver,  unless  it  is  sufficient  to  entirely  protect  the  in- 
dorser,  and  on  this  point,  according  to  many  authorities,  lies  the 
distinction   between   securing   all   the   maker's   effects,  and   an 


thought  that  the  cases  cited  supra  did  not  depend  upon  the  f:\ct  that  the  whole  of 
the  maker's  estate  was  assigned,  but  that  the  ground  for  these  decisions  was,  that  tlie 
indorser  was  secured.  In  Stephenson  v.  Primrose,  8  Port.  Ahi.  155,  the  point  seems  to 
be  decided.  But  Collier,  C.  J.  said  that  there  might  be  exceptions.  See  also  ITolman 
r.  Whiting,  19  Ala.  703,  but  in  that  case  the  assignment,  which  was  of  a  judgment, 
was  made  to  the  defendant's  attorney,  and  there  was  no  evidence  that  the  defendant 
either  assented  to  or  knew  of  it ;  and  he  was  discharged  on  account  of  no  demand 
being  made,  or  notice  given.  In  Watt  v.  Mitchell,  6  How.  Miss.  \3l,  the  demand  was 
made  a  day  too  late,  but  notice  was  given  on  the  day  of  maturity.  Tiie  defendant  was 
indemnified  by  a  mortgage,  and  was  held  on  that  ground.  Evidence  was  offered  by  him 
to  prove  that  the  mortgage,  when  foreclosed,  was  insufficient  to  cover  the  liability,  but  it 
was  held  inadmissible.  It  also  appeared  that  the  defendant  had,  prior  to  foreclosure, 
released  a  part  of  the  mortgaged  property.  The  court  said  :  "  We  are  of  opinion  that 
this  evidence  was  properly  ruled  out.  The  question  is,  whether  an  indorser,  who  ob- 
tains indemnity  for  his  indorsement  from  his  principal,  does  not  thcrel)y  dispense  with 
notice  of  demand  and  refusal  to  pay.  We  think  he  docs,  and  especially  under  the  cir- 
cumstauces  of  this  case.  Here  the  iiidorsers  obtained  a  formal  mortgage  of  a  very  large 
amount  of  property,  and  had  the  same  recorded,  as  an  indemnity  against  their  several 
undertakings  and  liabilities  ;  and  that  they  actually,  of  tlieir  own  accord,  released  to 
their  principal  a  large  portion  of  the  mortgaged  estate,  without  any  agency  or  consent 
of  the  holder  of  this  note  ;  and  if  the  property  remaining  in  their  hands  proved  insufficient 
to  indemnify  them,  it  was  their  own  fault,  and  not  binding  on  the  holder  of  the  paper." 
In  Walker  v.  Walker,  2  Eng.  Ark.  542,  the  second  indorser  of  a  bill  had  received 
ample  indemnity  from  the  first  indor.ser.  The  judge  charged  the  jury,  if  they  believed 
that  the  indemnity  was  then  taken,  and  was  at  that  time  sufficient,  to  find  for  the  plain- 
tiff, although  he  had  received  no  notice,  notwithstanding  the  indemnity  afterwards  be- 
came doubtful  as  a  means  of  security.  The  instructions  were  held  correct.  Oldham,  J. 
said,  after  referring  to  the  rule  with  respect  to  indemnity:  "  It  is  contended  by  the  plain- 
tiffs in  error  that  this  rule  extends  only  to  cases  '  where  there  are  hut  three  parties,  the 
drawer,  indorser,  and  payee,  and  the  indorser  takes  from  the  drawer  an  assignment  for 
the  express  purpose  of  paying  the  bill,  and  thereby  making  a  demand  on  the  drawer 
fruitless,  and  becoming  himself  the  real  debtor '  We  have  taken  some  pains  to  look 
into  the  reported  cases  to  see  if  this  position  is  correct.  We  find  that  many  of  the 
cases  do  not  go  further,  because  the  facts  involved  in  them  did  not  require  a  more  ex- 
tensive application  of  the  rule."  After  citing  several  cases,  the  judge  continued  : 
"  These  cases  fully  establish  the  principle  that,  if  the  indorser  take  a  sufficient  .security 
from  the  maker  to  indemnify  him  against  his  indorsement,  it  will  dispense  with  proof 
of  demand  and  notice  of  non-payment.  But  it  is  insisted  that  the  security  in  this  case 
•vas  from  the  first  to  the  second  indorser.  The  same  relation  exists  between  them  as 
between  the  drawer  and  the  first  indorser,  and  the  reason  of  the  rule  applies  as  readily 
to  one  case  as  the  other.  And  in  this  view  we  are  sustained  by  Judge  Ston/,  who, 
after  statl-g  the  general  rule  as  between  the  drawer  and  the  indorser,  continues  :  '  It  fol- 
'ows  a  fortiori  that,  if,  by  prior  arrangements  between  any  of  the  parties,  the  necessity  of 
notice  has  been  expressly  or  impliedly  dispensed  with,  as  between  these  parties,  no  notice 
need  be  given.'  One  of  the  defendants  below  received  notes  as  an  indemnity  to  him 
48* 


57G  KOTES   AND   BILLS.  [CH.  XIH. 

assijjimieut  sufl&cient  to  cover  a  particular  indorsement ;  the 
former  circumstance  rendering  it  immaterial  whether  sufficient 
security  is  taken,  ^yhile  the  adequacy  of  the  security  is  essential, 
to  make  the  latter  a  valid  waiver, (/>) 


against  his  indorsement.  The  amount  was  amply  sufficient  to  cover  his  liability  ;  and  it 
was  proven  that  the  makers  of  those  notes,  at  the  time  of  maturity  of  the  bill,  were  good 
for  the  amount.  We  are  consequently  of  opinion  that  the  facts  proven  dispense  with 
the  necessity  of  proof  of  demand  and  notice  as  to  that  defendant,  and  that  the  instruc- 
tions of  the  court  below  on  that  point  were  correct."  The  language  used  in  this  case 
is  somewhat  obscure,  on  account  of  confounding  the  words  "  maker"  and  "  drawer." 
In  Kyle  v.  Green,  14  Ohio,  495,  the  defendant  received  the  note  of  a  third  person, 
as  a  part  of  the  consideration  for  a  tract  of  laud  which  the  former  agreed  to  convey  on 
payment  of  the  note.  The  defendant  had  signed  a  title-bond,  but  retained  the  title  la 
his  own  hands.  The  vendee  was  the  first  indorser.  He  had  indorsed  it  to  the  plain- 
tiff, who  offered  no  evidence  of  demand  and  notice,  on  the  trial.  The  defendant  made 
a  demand  on  the  maker  twenty  days  after  maturity.  The  judge  charged  the  jury  that 
the  indemnity  absolved  the  plaintiff  from  the  obligation  of  making  demand  and  giving 
notice.  Held  correct.  Read,  J.  said:  "But  the  defendant  insists  that  the  bond  is  no 
indemnity,  because  the  first  indorser  is  discharged  from  the  payment  of  the  note,  as  he 
was  not  notified  of  demand  and  non-payment  of  the  maker,  and  therefore  that  ho 
cannot  collect  it  from  the  first  indorser ;  and  that  a  court  of  equity  would  compel  him 
to  execute  a  deed  to  the  first  indorser,  upon  the  grouud  that  the  plaintiff  and  himself 
had  so  conducted  themselves  respecting  the  note  as  to  make  it  their  own,  and  a  pay- 
ment to  that  extent  by  the  first  indorser.  If  this  be  the  fact,  it  is  the  fault  of  the  defend- 
ant. It  was  the  duty  of  the  defendant  to  see  that  the  liability  of  the  first  indorser  was 
fixed  by  notice  of  demand  and  non-payment,  if  it  were  necessary.  If  it  were  not  done, 
the  defendant  cannot  complain  of  the  plaintiff.  If  the  defendant  has  so  conducted  respect- 
ing the  note  as  to  lose  the  amount,  the  fault  and  the  loss  are  his.  Wiiethcr  he  has  or 
not,  we  do  not  decide  in  this  case.  But  if  he  has  not,  the  laud  is  an  indemnity,  and  the 
court  did  not  err  in  their  charge  to  the  jury."  By  the  case  of  Hall  v.  Green,  14  Ohio, 
497,  it  will  be  seen  that  the  defendant  was  obliged  to  convey  the  land  to  the  first  indorser. 
In  Develing  v.  Ferris,  18  Ohio,  170,  the  defendant  had  sold  certain  lands  to  the  maker, 
and  took  his  note  in  part  payment  therefor,  but  still  retained  the  title  as  security  until 
the  note  should  be  paid.  He  subsequently  indorsed  the  note  to  the  plaintiff,  and  on 
being  called  upon  for  i>ayment,  admitted  that  he  was  secured.  The  defendant  was 
held  without  proof  of  demand  and  notice,  Ililchcock,  C.  J.  taking  it  for  granted  that 
demand  was  not  made  at  the  right  time.  Eccleston,  J.,  Lewis  v.  Kramer,  3  iMd.  26!j,  291. 
(/))  Maine  Bank  v.  Smith,  18  Maine,  99,  where  the  defendant  had  taken  a  mortgage, 
but  it  appeared  that  he  had  derived  no  benefit  from  it;  Marshall  v.  Mitciiell,  34  id. 
227,  where  the  defendant  had  taken  a  mortgage,  but  the  plaintiff  failed,  because  ho 
did  not  prove  it  to  he  sufiicicnt  indemnity;  Brunson  v.  Napier,  1  Ycrg.  199.  See 
Lewis  V.  Kramer,  3  Md.  2G5,  291.  See  Spencer  v.  Harvey,  17  Wend.  489,  where 
Nelson,  C  J.  said  :  "  Notice  was  supposed  to  have  been  dispensed  with,  on  the  ground 
that  the  indorser  had  taken  indemnity  of  the  makers,  by  means  of  a  judgment,  upon 
which  execution  has  f)een  issued ;  but  it  is  extremely  uncertain  if  anything  will  be 
realized  out  of  the  property.  The  security  is  already  in  litigation  in  ciinnccry.  The 
mere  precaution,  by  an  indorser,  of  taking  security  from  his  principal,  lias  never  been 
adjudged  to  operate  as  a  dispensation  of  a  regular  demand  and  notice.  It  is  no  doubt 
a  common  occurrence,  yet  such  effect  has  never  been  imputed  to  it.     There  must  be 


CH.  XIII.]  EXCUSES   FOR   WANT    OF   NOTICE.  671 

Tliis  doctrine,  however,  although  supported  by  the  ophiions  of 
such  distinguished  jurists  as  Mr.  Justice  Story(^)  and  Chancellor 
Kent,(r)  we  think  is  erroneous,  and  not  supported  by  the  weight 
of  authority,  or  by  the  best  considered  cases.  Where  a  party 
takes  security,  although  it  may  be  ample,  the  fair  and  proper 
construction  is,  in  our  opinion,  that  he  takes  it  to  secure  his 
liability  as  indorser.  Now  his  liability  as  indorser  depends  upon 
the  fact  of  due  demand  and  notice  ;  and  hence  the  agreement 
by  the  indorser's  receiving  the  security  may  be  regarded  as  to 
the  effect  that,  if  he  is  properly  charged,  he  will  employ  the 
security  to  pay  off  the  note ;  and  if  he  is  not  properly  charged, 
that  he  will  return  it  to  the  maker,  or  to  the  party  from  whom 
he  received  it.(s) 

soraethinn;  more,  such  as  taking  into  his  possession  the  funds  or  property  of  the  princi- 
pal, sufhcient  for  the  purpose  of  meeting  the  payment  of  the  note  ;  or  he  must  have  an 
assignment  of  all  tlie  property,  real  and  personal,  of  the  makers  for  that  purpose.  The 
notice  is  dispensed  witii  when  funds  are  received,  upon  the  ground  that  the  object  for 
which  it  is  required  to  be  given,  namely,  to  enable  the  indorser  to  obtain  indemnity 
from  his  principal,  has  already  been  attained.  Partial  or  doubtful  security  falls  short 
of  this,  and  leaves  the  reason  of  the  rule  requiring  notice  in  full  force."  See  Bruce  v. 
Lytic,  13  Barb.  163  ;  May  v.  Boisseau,  8  Leigh,  164  ;  AVarder  v.  Tucker,  7  Mass.  449; 
Burrows  v.  Hannegan,  1  McLean,  309. 

(q)  Story  on  Prom.  Notes,  §  357  ;  Story  on  Bills,  §  374. 

(r)  3  Kent,  Com.  113. 

(s)  This  seems  to  have  been  the  principle  upon  which  Creamer  v.  Perry,  17  Pick.  332, 
where  the  assignment  was  made  to  trustees  was  decided.  Tiie  plaintiff  was  nonsuited, 
on  account  of  laches  in  demand  and  notice,  although  the  defendant  had  taken  an  assign- 
ment. See  the  facts  and  remarks  of  Shaw,  C.  J.,  cited  supra,  p.  566,  note  J.  In  Wood- 
man V.  Eastman,  10  N.  H.  359,  the  defendant  had  taken  a  mortgage  from  the  maker 
to  secure  the  note  in  suit  and  another.  Held  no  waiver  of  demand  and  notice.  Parker, 
C.  J.  said :  "  An  indorser  of  a  note  who  holds  a  mortgage  for  its  security,  unless  there 
is,  at  the  time  of  the  indorsement  or  afterwards,  some  other  evidence  of  waiver,  seems 
to  have  the  same  right  to  be  exonerated  by  the  neglect  of  the  holder  as  any  other  in- 
dorser. In  such  case,  if  there  was  but  one  note  secured  by  the  mortgage,  the  indorsee 
would  either  be  entitled  to  the  benefit  of  the  mortgage,  upon  the  ground  that  it  passed 
as  an  incident ;  or  the  mortgage  would  be  destroyed  by  the  transfer  of  the  note,  and 
the  holder  would  have  a  right  to  attach  the  land.  If  there  were  other  lands  secured  by 
the  mortgage,  and  retained  by  the  mortgagee,  it  might  be  different ;  but  that  could  not 
change  the  nature  of  the  case.  If  by  the  indorsement  the  note  was  so  separated  from 
the  mortgage  that  the  latter  was  no  longer  a  security,  the  indorsee  might  attach  the 
equity  of  redemption.  In  either  case,  there  would  be  nothing  to  show  that  it  was 
within  the  contemplation  of  the  parties  that  the  right  to  require  demand  and  notice 
should  be  waived,  and  of  course  notliing  to  show  even  an  implied  agreement  to  that 
effect."  It  will  be  observed,  however,  that  there  was  evidence  in  this  case  that  the 
mortgage  liad  been  transferred  to  the  plaintiff,  and  that  the  defendant  afterwards  got 
possession  of  it  improperly.  In  Holland  v.  Turner,  10  Conn.  308,  the  indorser  held 
the  goods,  for  which  the  note  was  given,  as  security.     He  was  discharged  on  account 


572  KOTES   AND   BILLS.  [CH.  Xm. 

It  is  also  very  difficult  to  see  why  the  mere  fact  of  taking  in- 

of  laches  in  giving  notice.  Bissell,  J.,  said :  "  We  have  shown  what  was  the  nature 
and  character  of  the  defendant's  undertaking ;  that  it  was  a  conditional  and  not  an  ab- 
solute engagement.  We  have  seen  upon  what  conditions  he  migiit  be  lield  answerable; 
and  that,  in  the  event  of  his  being  compelled  to  pay  the  note,  he  would  have  a  right  of 
recourse  to  the  maker.  He  has  taken  security  to  indemnify  himself  against  that  under- 
taking. Can  it  then  be  seriously  contended  that  the  fact  of  taking  such  security  is  to 
change  entirely  the  character  of  the  undertaking  1  To  convert  it  from  a  conditional  to 
an  absolute  one  ?  When  the  defendant  indorsed  the  note,  he  was  entitled,  in  his  char- 
acter of  indorser,  to  notice.  Is  there  any  reason  why  his  subsequently  having  taken  a 
security  should  deprive  him  of  a  right  to  which  he  was  entitled  when  the  indorsement 
was  made  ?  From  the  fact  that  no  notice  was  given,  he  would  have  a  right  to  pre- 
sume that  the  note  was  paid  by  the  maker,  and  might  thus  be  induced  to  part  with  his 
security."  See  the  remarks  of  Nelson,  C.  J.,  in  Spencer  v.  Harvey,  17  AVend.  489, 
cited  supra,  p.  570,  note  p.  So  Ingraham,  J.,  in  Taylor  v.  French,  4  E.  D.  Smith,  458, 
said:  "Mere  security  for  the  indorsement  affords  no  reason  for  dispensing  with  de- 
mand. On  the  contrary,  it  furnishes  a  stronger  reason  why  the  indorser,  who  hokls  secu- 
rity, should  be  informed  of  the  non-payment.  Without  notice  thereof,  he  miglit  suppose 
it  to  have  been  paid,  and  in  consequence  of  such  neglect  have  parted  with  his  security." 
In  Seacord  r.  Miller,  3  Kern.  55,  the  defendajit  had,  sI.n;  months  before  maturity, 
taken  a  mortgage  of  j)ersonal  property  of  the  maker.  The  demand  and  notice  were 
premature,  and  the  defendant  was  disciiarged.  It  did  not  appear  whether  the  mort- 
gage was  sufficient  indemnity,  but  the  court  did  not  lay  much  stress  upon  the  fiict. 
Gardiner,  C.  J.  said  :  "  The  security  given  in  this  case  was  designed  as  an  indemnity 
against  a  contingent  liability.  It  did  not  change  the  nature  of  the  original  contract, 
or  amount  to  a  performance  of  a  condition  precedent  upon  which  that  liability  de- 
pended. I  do  not  perceive  how,  upon  the  principle  upon  which  this  case  was  decided 
(in  the  lower  court,  rendering  judgment  in  favor  of  the  plaintiff),  an  indorser  couhl  ever 
take  an  adequate  security  without  converting  a  conditional  into  an  absolute  contract 
for  the  payment  of  the  money  mentioned  in  the  note.  Where  the  fund  is  deposited  by 
the  maker  and  accepted  by  the  indorser  for  the  purpose  of  paying  the  demand,  the  case 
may  be  different."  The  subject  was  very  ably  discussed  in  Kramer  v.  Sandford,  4 
Watts  &  S.  328.  In  that  case  the  plaintiffs  failed  to  give  notice.  Five  months  before 
maturity  tlie  makers  executed  a  judgment  bond  to  the  defendant  in  the  penalty  of 
$  18,000,  with  a  condition  annexed,  reciting  that  the  defendant  was  an  indorser  for  the 
makers  to  the  amount  of  $  9,000,  and  that  they  would  indemnify  and  save  liim  harm- 
less from  all  his  res|)onsibility.  A  judgment  had  been  entered  on  the  bond,  and  a  fieri 
facias  issued  and  levied  on  personal  property.  Tiie  plaintiffs  proved  tliat  the  property 
was  sufficient  to  secure  payment  of  the  judgment.  The  indorser  was  discharged.  Gib- 
son, C.  J.,  after  referring  to  the  fact  that  an  assignment  of  all  the  maker's  estate  consti- 
tutes a  waiver,  said :  "  But  the  supposed  waiver  of  notice,  in  consideration  of  a  chose 
in  action  given  as  a  collateral  security,  contingent  and  inadetiuate  to  produce  perfect 
safety,  as  every  chose  in  action  must  be,  stands  on  a  less  firm  foundation.  The  ac 
ceptance  of  such  a  security  is  never  thought  to  be  a  waiver  by  the  parties  themselves, 
though  it  is  frequently  a  motive  for  the  act  of  indorsement.  Collateral  security  is 
cumulative  in  its  very  essence  ;  and  it  is  never  suffered  to  impair  the  ol)ligation  of  the 
contract  immediately  between  the  parties.  It  may  be  accepted,  tliough  known  to  be 
inadecpiate  at  the  time,  the  indorser  relying  for  the  rest  on  the  maker's  oihcr  means, 
and  his  own  energy  of  pursuit,  when  warned  of  tiic  necessity  of  c.xei'ting  it ;  and  it 
would  be  contrary  to  the  understanding  of  the  parties  to  make  the  accej)tancc  of  such 


CH.  XIII.]  EXCUSES   FOR   WANT   OF   NOTICE.  573 

demnity,  which  is  an  act  entirely  distinct  from,  and  unconnected 

a  security  a  substitute  for  notice.  There  can  be  no  presumptive  waiver  of  notice  wftera 
there  has  been  no  waiver  of  recourse  to  the  maker;  and  the  acceptance  of  a  security 
is  not  such,  unless  it  has  been  taken  in  satisfaction.  Notice  may  be  necessary  to  make 
the  very  .security  available  on  which  the  indorser  is  supposed  to  have  relied,  but  which 
lie  may  have  reserved  for  the  critical  moment.  A  judgment  bond,  which  was  the  secu- 
rity in  this  instance,  is  seldom  entered  up  immediately;  and  the  indorser  ought  to  have 
notice  when  the  time  for  action  has  arrived  ;  for  by  the  delay  of  a  day  or  an  hour  the 
golden  opportunity  may  be  lost.  The  banks  often  take  such  bonds,  ostensibly  for  their 
own  security,  but  to  be  entered  at  the  request  of  the  indorsers ;  yet  no  one  ever  thought 
that  the  indorsers  were  therefore  not  to  have  notice.  The  ])ractico  is  veiy  common. 
In  this  case  there  was  no  real  estate  to  be  bound,  and  an  immature  judgment  would 
have  been  fruitless ;  but  there  was  the  more  need  of  notice  of  dishonor  to  expedite 
an  execution,  when  the  time  came,  against  the  maker's  personal  [iroperty.  He  was  an 
indorser  of  accommodation  paper;  and,  as  a  surety  is  held  to  nothing  which  is  not  ex- 
plicitly exacted  by  his  contract,  he  is  not  presumed  to  have  relinquished  any  of  its  priv 
ileges.  This  doctrine  of  waiver  in  consideration  of  a  security  has  no  footing  in  West- 
minster Hall ;  for  the  indorser  in  Corney  v.  Da  Costa,  (1  Esp.  302,  supra,  p.  561,  note/,) 
which  has  been  referred  to  as  the  germ  of  it,  received  effects  from  the  drawer  to  tho 
amount  of  the  note,  and  thus  became  the  party  to  take  it  up.  The  property  was  put 
into  his  hands  avowedly  for  that  purpose,  and  he  conseqixently  took  the  place  of  tha 
principal  debtor.  ....  I  grant  that,  where  the  security  is  money  or  effects,  put  into  his 
hands  to  satisfy  the  debt,  he  changes  place  with  the  maker,  and  loses  his  original  char- 
acter ;  he  is  no  longer  an  indorser,  and  cannot  claim  the  privileges  of  one.  But  no 
judge  has  said  that  a  chose  in  action  transferred  to  meet,  not  the  note  at  its  maturity,  but 
tlie  contingency  of  the  indorser's  eventual  liability,  dispenses  with  notice  to  him ;  or 

that,  as  a  collateral  security,  it  is  a  waiver  of  his  recourse  to  the  maker It  would 

seem  that  Chancellor  Kent's  conclusion  from  these  authorities,  3  Com.  113,  that  notice 
is  not  required  where  the  indorser  has  protected  himself  by  an  assignment  or  collateral 
security,  is  not  sustained  by  them,  as  a  princijde  applicable  to  all  cases  in  every  variety  of 
circumstances.  The  true  criterion  seems  to  be  the  obligation  to  take  up  the  note.  When 
that  remains  with  the  maker,  it  continues  to  be  the  duty  of  the  indorsee  to  apprise  the  in- 
dorser of  the  maker's  default ;  where  it  has  devolved  on  the  indorser  himself,  he  needs 
no  notice.  Certainly  a  bond  and  warrant  taken,  to  be  held  in  reserve,  cannot  turn  his 
contingent  responsibility  into  an  absolute  one,  and  dispense  with  performance  of  the 
condition  of  demand  and  notice  as  part  of  the  title."  In  Moore  v.  Cofheld,  1  Dev. 
247,  the  defendant  had  sold  a  tract  of  land  to  the  maker  and  taken  the  note  of  the  latter, 
who  also  executed  a  deed  of  trust  to  secure  the  defendant  for  the  payment  of  the  note. 
Held  no  waiver  of  due  demand.  In  Denny  v.  Palmer,  5  Ired.  610,  the  makers  had 
assigned  to  a  third  party  as  trustee  property  sufficient,  it  seems,  to  cover  the  liability  of 
the  defendant.  The  latter  was  discharged,  because  notice  was  sent  to  the  wrong  post- 
office.  In  Dufour  v.  Morse,  9  La.  333,  the  notice  was  delivered  to  a  person  who  was 
not  shown  to  be  authorized  to  receive  it.  The  indorser  took  a  mortgage  of  the  maker 
as  security,  when  he  indorsed.  He  was  discharged.  Martin,  J.  said  :  "  Here  the  in- 
dorser received  nothing  but  a  mortgage  for  his  indemnification.  He  might  well  ex- 
pect that  the  duty  and  interest  of  the  maker  would  prompt  him  to  prevent  the  protest 
of  the  note.  He  knew  tliat  the  only  obligation  ho  had  incurred  towards  the  holder  of 
the  note  was  to  pay  it  in  case  the  maker  did  not,  and  after  being  duly  and  legally 
notified  of  the  failure  and  neglect  of  the  maker  to  take  it  up.  Towards  the  latter,  tha 
indorser  incurred  no  obligation.     The  mortgage  was  a  useless  paper  in  the  hands  of 


574  NOTES   AND   BILLS.  [CH.  Xm. 

with,  the  note  itself,  should  have  the  effect  of  changing  the  un- 
dertaking of  the  indorser  from  a  conditional  to  an  absolute 
one.(^) 

The  additional  reason  has  been  given,  that  notice  may  be 
essential  to  the  indorser,  in  order  that  he  may  take  the  proper 
steps  to  render  his  security  available,  and  a  delay  may  often  be 
as  prejudicial  in  this  respect  as  wlien  no  indemnity  at  all  has 
been  taken. («)  Stress  has  sometimes  been  laid  on  the  particular 
kind  of  the  security  taken,  such  as  choses  in  action  and  the 
like  ;  (v)  but  we  doubt  whether  this  should  make  any  difference 
in  the  law.  The  fact  that  the  security  is  conveyed  to  a  trustee, 
instead  of  directly  to  the  indorser,  has  also  been  somewhat  re- 
lied upon,(i^)  but  there  does  not  appear  to  be  any  good  reason 
why  this  fact  should  change  the  character  of  the  act. 

The  answer  to  the  objection,  that  the  whole  object  in  requiring 
notice  is  attained  as  soon  as  the  indorser  is  indemnified,  is,  in 
our  opinion,  that,  whatever  may  have  been  its  effect  in  the  grad- 
ual formation  of  the  law,  the  requirement  of  notice  has  at  last 
settled  down  into  a  strict  technical  right,  and  an  appeal  to  origi- 
nal reasons  has  become  less  frequent  and  less  influential. 

If,  however,  there  is  anything  in  the  acts  or  words  of  the 
indorser,  at  the  time  the  security  is  received,  which,  by  fair 
construction,  imply  or  show  an  agreement  by  him  to  consider 


the  defendants.  The  inchoate  and  conditional  obli;ration  wliich  resulted  from  the 
indorsement  never  became  perfect  and  absolute.  The  indorser,  nor  those  wlio  represent 
him  in  this  case,  have  not  suffered,  nor  can  tlicy  now  suffer  any  injury,  for  the  indemni 
fication  of  which  they  could  resort  to  the  mortgage.  The  defendants  are  precisely  in 
the  same  situation  as  they  would  be  if  no  mortgage  had  been  taken." 

{t)  Bissell,  J.,  sujira,  p.  572,  note  s ;  Gardiner,  C.  J.,  id. 

(m)   Bissell,  J.,  supra,  p.  572,  note  s  ;  lugraham,  J.,  id. ;  Gibson,  C.  J.,  id. 

{v)  Gibson,  C.  J.,  supra,  p.  572,  note  s.  In  Dufour  v.  Morse,  9  La.  333,  ^farlin,  J. 
said  :  "  It  is  contended,  that,  as  the  indorser  was  secured  against  any  loss,  there  was  no 
necessity  of  giving  him  any  notice.  This  may  be  the  case  where  a  creditor  is  secured 
against  the  effect  of  the  indorsement  by  the  receipt  of  a  sum  of  money,  other  notes,  bills, 
or  property.  In  such  a  case  he  may  be  viewed  as  having  undertaken  to  apply  the 
money  he  had  received,  or  that  which  the  notes,  bills,  or  other  projierty  may  afford  him 
the  means  of  obtaining,  to  the  discharge  of  his  conditional  obligation.  lie  may  be 
viewed  as  an  agent  who  has  undertaken  to  pay,  and  therefore  cannot  be  said  to  bo 
disappointed  if  his  principal,  relying  on  the  performance  of  the  obligation  of  his  friend, 
takes  no  further  steps  for  the  payment  of  the  note."  In  Bruce  v.  Lytic,  13  Barb.  163. 
166,  Hand,  J.  said  :  "  But  if  the  indemnity  is  only  by  way  of  lien,  or  by  a  countev 
bond,  it  seems  to  me  there  should  be  an  express  promise." 

(it")   /iiiffin,  C.  J.,  in  Denny  v.  Palmer,  5  Ired.  610,  630. 


CH.   Xm.]  EXCUSES   FOR   WANT    OF   NOTICE.  575 

liiinsclf  the  party  primarily  liable  on  the  note,  and  directly  re- 
sponsible for  its  payment,  the  case  is  entirely  different,  and  in 
this  point  of  view  only  we  think  that  taking  the  security  op- 
erates as  an  extinguishment  of  his  right  to  demand  and  notice. 
In  other  words,  and  in  the  language  of  Chief  Justice  Gibson, (.r) 
"  the  true  criterion  seems  to  be  the  obligation  to  take  up  the 
note."  (i/)  We  should  be  glad  to  see  a  peremptory  rule  estab- 
lished, that  notice  should  always  be  given,  unless  the  indorser  is 
under  an  unconditional  obligation  to  take  up  the  note. 


SECTION    lY. 

OF  EXCUSES  FOR  NON-NOTICE,  GROUNDED  ON  A  WAIVER  OF  THE  RIGHT 
TO  REQUIRE  NOTICE. 

The  excuses  for  non-notice,  grounded  on  a  waiver  —  actual 
or  constructive  —  by  the  party  entitled  to  require  notice,  are  so 
numerous,  and  rest  on  such  a  great  variety  of  circumstances, 
that  it  is  thouglil  best  to  present  them  under  different  heads. 
These  will  be,  1.  when  the  waiver  is  in  writing  on  the  note  or 
bill ;  2.  when  it  is  inferred  from  acts  of  the  drawer  or  indorser  ; 

(ar)  Kramer  v.  Sandford,  4  Watts  &  S.  328,  331,  cited  supra,  p.  572,  note  s. 

(y)  This  seems  to  have  been  one  of  the  principles  upon  which  Corney  v.  Da  Costa,  1 
Esp.  302,  supra,  p.  561,  note  /,  was  decided,  as  appears  from  the  language  of  Buller, 
J.,  although  it  may  have  been  that  all  the  maker's  property  was  assigned.  Parke,  B.,  in 
Carter  v.  Flower,  16  M.  &.  W.  743,  751,  cited  tlie  case  as  authority  for  the  remark  that 
"  The  cases  in  which  the  indorser  has  been  held  liable  without  notice  have  had  some 
other  material  circumstances,  as,  for  instance,  that  he  had  funds  put  into  his  hands  by 
the  drawer,  out  of  which  he  was  to  pay  the  bill  or  note.  Mead  v.  Small,  2  Greenl.  207, 
supra,  p.  568,  note  o,  may  be  sustained  upon  this  ground.  See  the  remarks  of  Parker,  C. 
J.,  in  Woodman  v.  Eastman,  10  N.  H.  359  ;  Gibson,  C.  J.,  Kramer  v.  Sandford,  4  Watts 
&  S.,  328,  supra,  p.  572,  note  s;  Martin,  J.,  Dufour  v.  Morse,  9  La.  333,  supra,  p.  574, 
noter;  Hand,  J.,  in  Bruce  v.  Lytle,  13  Barb.  163,  supra,  p.  574,  note  v ;  Martel  v.  Tu- 
reaud,  18  Mart.  La.  118,  where  there  was  an  assignment  and  a  promise,  and  the  indorser 
was  held,  without  notice;  Taylor  v.  French,  4  E.  D.  Smith,  458,  where  the  indorser 
was  held,  although  the  check  was  protested  prematurely,  he  having  on  the  day  of  pro- 
test told  the  holder  that  the  drawer  could  not  pay,  having  made  an  assignment,  in 
which  he,  the  indorser,  was  preferred.  See  Coddington  v.  Davis,  3  Denio,  16,  infra,  p. 
578,  note  (/.  In  Moon  r.  Haynie,  1  Hill,  S.  Car.  411,  the  plaintiff  proved  that,  at  or 
about  the  time  the  note  fell  due,  the  defendant,  an  indorser,  sent  him  a  message  that  he, 
the  defendant,  "  had  taken  back  from  the  maker  the  lani  for  which  the  note  was  given, 
and  that  he  had  become  paymaster  for  the  amount  to  the  plaintiff,  but  that  he  did  not 
mean  to  pay  it,  as  the  property  received  for  it  was  not  as  represented  by  the  plaintiff." 
No  demand  and  notice  were  held  necessary. 


573  NOTES   AXD    BILLS.  [CH.  XHL 

3.  where  the  waiver  occurs  on  the  day  of  maturity ;  4.  where  it 
occurs  after  maturity ;  5.  by  whom  the  waiver  is  made  ;  6.  to 
wliom  the  waiver  is  made ;  7.  of  presumptive  evidence  iu  the 
question  of  waiver. 

1.   When  the   Waiver  is  in  Writing  on  the  Note  or  Bill. 

Demand  and  notice  may  be  waived  by  an  indorser's  writing 
over  his  signature  the  words,  "  I  waive  demand  and  notice,"  (a) 
or  "  waiving  demand  and  notice."  (b)  Any  other  words,  which 
by  fair  and  reasonable  construction  imply  an  intent  to  waive 
demand  and  notice,  will  have  this  effect,(6')  we  think ;  although 
there  is  authority  to  the  effect  that  such  waivers  are  to  be  con- 
strued strictly. (^)  There  is  conflicting  authority  on  the  point 
whether  the  words,  "  I  waive  protest,"  on  a  note  or  an  inland 
bill,  constitute  a  waiver  of  both  demand  and  notice,  or  not.  It 
seems  to  have  been  hel^l  by  high  authority,  that  these  words 
alone,  on  a  promissory  note,  are  so  uncertain  as  not  to  imply  a 
waiver  of  demand  and  notice,  except  in  connection  with  other 
words  and  acts,  from  which  such  an  intent  can  be  inferred. (e) 


(a)  Woodman  v.  Thurston,  8  Cush.  157. 

{h)  Jolinston  v  Searcy,  4  Yerg.  182,  where  the  indorser  was  held,  although  the  plain- 
tiff neglected  to  sue  for  more  than  fifteen  months  after  maturity,  during  which  time  the 
maker  was  solvent,  but  after  which  he  had  failed. 

(c)  Weston,  J.  said,  in  Fuller  v.  McDonald,  8  Grecnl.  213  :  "  It  is  not  necessary 
tliat  a  waiver  should  be  direct  and  positive.  It  may  result  by  implication  from  usage, 
or  from  any  understanding  between  the  parties,  wliich  is  of  a  character  to  satisfy  the 
mind  that  a  waiver  is  intended." 

(d)  Wall  V.  Bry,  I  La.  Ann.  312;  Bird  v.  Le  Blanc,  6  La.  Ann.  470,  wlicrc  Eiistis, 
C.  J.  said  :  "  It  is  not  desiral)le,  in  a  mercantile  community,  that  the  defaults  to  pay 
bills  or  notes  when  due  should  be  kept  secret.  It  enai)les  insolvents  to  maintain  a  false 
credit.  We  have  had  cases  before  us  in  which  the  waivers  of  protest  have  been  the 
means  of  misleading  the  public  as  to  the  real  situation  of  parties,  and  producing  great 
injury  thereby  ;  and  this  is  a  strong  reason  for  holding  to  tlie  old  rule,  and  not  encour- 
aging waivers  of  protest  by  giving  them  a  large  construction." 

(e)  In  Union  Bank  v.  Hyde,  6  Wheat.  .572,  the  writing,  signed  by  the  indorser,  was 
in  tlic  following  words  :  "  I  do  request  that  hereafter  any  notes  that  may  fall  duo  in 
tlie  Union  Bank,  on  wliich  I  am,  or  may  be,  indorser,  shall  not  be  protested,  ns  I 
will  consider  myself  bound  in  the  same  manner  as  if  the  said  notes  had  been,  or  should 
be,  legally  protested  "  This  was  licld  a  waiver  of  demand  and  notice,  both  parties 
having  had  a  course  of  dealing  founded  on  lliat  construction.  Johnson,  J.  said  :  "  Two 
constructions  have  been   contended  for,  the  one,  literal,  formal,  and  vernacular;  the 

Other,  resting  on  the  spirit  and  meaning,  as  a  mercantile  and  bank  transaction 

By  some  assumed  analogy,  or  mistaken  notions  of  law,  this  ))racticc  of  i)rotesting  inland 
bills  has  now  become  very  generally  prevalent;  and  since  the  inundation  of  the  country 


CH.  XIII.]  EXCUSES   FOR   WANT   OF   NOTICE.  577 

These  words  have  also  been  held  to  constitute  a  waiver  of  do- 


with  bank  transactions,  and  the  general  resort  to  this  mode  of  exposing  the  breaches 
of  punctualit3'  which  occur  upon  notes,  a  solemnity,  cogency,  and  legal  effect  have 
been  given  to  such  protests  in  public  opinion  which  certainly  has  no  foundation  in  the 
law  merchant.  The  nullity  of  a  protest  on  the  legal  obligations  of  the  parties  to  an 
inland  bill,  is  tested  by  the  consideration  that,  independently  of  statutory  provision,  if 
any  exists  anywhere,  or  conventional  understanding,  the  protest  on  an  inland  bill  is  no 
evidence  in  a  court  of  justice  of  either  of  the  incidents  which  convert  the  conditional 
undirtaking  of  an  indorser  into  an  absolute  assumption.  The  protest  belongs  alto- 
gether to  foreign  mercantile  transactions,  upon  which,  on  the  contrary,  it  is  an  indis- 
pensable incident  to  making  the  drawer  of  a  bill  or  indorser  of  a  note  liable.  On 
foreign  bills,  it  is  the  evidence  of  demand,  and  an  indispensable  step  towards  the  legal 
notice  of  non-payment,  in  consequence  of  which  the  undertaking  of  the  drawer  or 
indorser  becomes  absolute.  Hence,  as  to  foreign  transactions,  it  is  justly  predicated  of 
a  protest,  that  it  lias  a  legal  or  binding  effect.  But  the  writing  under  consideration 
has  a  reference  exclusively  to  inland  bills,  and  as  to  them  the  protest  has  no  legal  or 
binding  effect.  The  indorser  became  liable,  only  on  a  demand  and  notice,  and  of 
these  facts  the  protest  is  no  evidence.  How,  then,  shall  the  waiver  of  the  protest  be 
adjudged  a  waiver  of  demand  and  notice,  or,  in  effect,  convert  his  conditional  into  an 
absolute  undertaking  ?  Had  the  defendant  omitted  one  word  from  his  undertaking,  it 
would  have  been  difficult  to  maintain  an  affirmative  answer  to  this  proposition.  But 
what  are  wo  to  understand  him  to  intend,  when  he  says,  '  I  will  consider  myself 
bound  in  the  same  manner  as  if  said  notes  had  betn  or  should  be  legally  protested '  ? 
Except  as  to  foreign  bills,  a  protest  has  no  legal  binding  effect,  and  as  to  them  it  is 
evidence  of  demand,  and  incident  to  legal  notice  It  either,  then,  had  this  meaning,  or 
it  Iiad  none.  This  reasoning,  it  may  be  said,  goes  no  farther  than  to  a  waiver  of  the 
demand  ;  but  what  effect  is  to  be  given  to  the  word  "  bound  "  ?  It  must  be  to  pay  the 
debt,  or  it  means  nothing.  But  to  cast  on  the  indorser  of  a  foreign  bill  an  obligation 
to  take  it  up,  protest  alone  is  not  sufficient ;  he  is  still  entitled  to  a  reasonable  notice  in 
addition  to  the  technical  notice  communicated  by  the  protest.  To  bind  him  to  pay  the 
debt,  all  these  incidents  were  indispensable,  and  may  therefore  be  well  supposed  to  have 
been  in  contemplation  of  the  parties  when  entering  into  this  contract.  It  is  not  un- 
worthy of  remark,  that  the  writing  under  consideration  asks  a  boon  of  the  plaintiff  for 
which  it  tenders  a  consideration.  It  requests  to  be  exempted  from  an  expense,  expos- 
ure, or  mortification,  on  the  one  hand  ;  and.  on  the  other,  what  is  tendered  in  return  1 
The  intended  object,  and  conceived  effect,  of  the  protest,  on  the  one  hand,  is  to  convert 
his  undertaking  into  an  unconditional  assumption,  and  the  natural  return  is  to  make  his 
undertaking  at  once  absolute,  as  the  effectual  means  of  obtaining  the  benefit  solicited.  If 
this  course  of  reasoning  should  not  be  held  conclusive,  it  would  at  least  be  sufficient  to 
prove  the  language  of  the  undertaking  equivocal  ;  and  that  the  sense  in  which  the  par- 
ties used  the  words  in  which  they  express  themselves  may  fairly  be  sought  in  the  prac- 
tical exposition  furnished  by  their  own  conduct,  or  the  conventional  use  of  language 
established  by  their  own  customs  or  received  opinions.  On  this  point,  the  evidence 
proves  that,  by  the  understanding  of  both  parties,  this  writing  did  dispense  with  de- 
mand and  refusal ;  that  the  company,  on  the  one  hand,  discontinued  their  practice  of 
putting  the  notes  indorsed  by  the  defendant  in  the  usual  course  for  rendering  his  as- 
sumption absolute,  and  the  defendant,  on  the  other,  continued  up  to  the  last  moment  to 
acquiesce  in  this  practice,  by  renewing  his  indorsements  without  ever  requiring  demand 
or  notice.  This  was  an  unequivocal  acquiescence  in  the  sense  given  by  the  companv 
to  his  undertaking,  and  he  cannot  be  permitted  to  lie  by  and  lull  the  company  into  a 
Vol.  I.— 2  M 


578  NOTES   AND   BILLS.  [CH.  XIII 

mand,  but  not  of  notice, (/)  the  courts  adopting,  in  tliis  instance, 
the  strict  construction.  But  there  is  authority  to  the  effect  that 
a  waiver  of  protest  is  a  waiver  of  both  demand  and  notice ;  (»•) 
because  the  term  "  protest,"  although,  in  its  strict  sense,  appli- 


state  of  security,  of  wliich  he  might  at  any  moment  avail  himself,  after  making  the 
most  of  the  credit  thus  acquired." 

(./")  Wall  V.  Bry,  1  La.  Ann.  312,  where  the  writing  was  in  these  words :  "  Wc  hereby 
waive  protest,  and  acknowledge  ourselves  as  fully  bound  for  the  within  note,  as  if  the 
same  was  legally  protested."  Bird  v.  Le  Blanc,  6  id.  470,  where  the  words  were,  "  I 
hereby  waive  protest  on  the  within  note." 

(g)  See  Coddington  v.  Davis,  1  Comst.  186,  3  Denio,  16.  The  instrument  was  as 
follows  :  "  Please  not  protest  T.  B.  Coddington's  note,  &c.,  and  I  will  waive  the  neces- 
sity of  the  protest  thereof."  There  were  other  circumstances  in  the  case,  but  Jeicett,  J., 
in  the  Supreme  Court,  expressly  says  that  the  writing  was  a  sufficient  waiver  of  notice, 
and  the  Court  of  Appeals  founded  their  decision  upon  it.  Gardiner,  J.  said  :  "  The 
term  'protest,'  in  a  stWct  technical  sense,  is  not  applicable  to  promissory  notes.  The 
word,  however,  as  I  appnhend,  has  by  general  usage  acquired  a  more  extensive  sig- 
nification, and,  in  a  case  like  the  present,  includes  all  those  acts  which,  by  law,  are 
necessary  to  charge  an  indorser.  When  among  men  of  business  a  note  is  said  to  be 
protested,  something  more  is  understood  than  an  official  declaration  of  a  notary.  The 
expression  would  be  used  indifferently  to  indicate  a  series  of  acts  necessary  to  convert 
a  conditional  into  an  absolute  liability,  whether  those  acts  were  performed  by  a  mere 
clerk  or  a  public  officer.  It  is  obvious  that  the  word  was  used  in  its  popular  accepta- 
tion by  the  defendant  below.  He  requests  the  indorsees  '  not  to  protest  the  note,  and 
that  he  would  waive  the  necessity  of  protest  thereof.'  The  protest  to  which  the  indorser 
alluded  was  something  '  necessary '  to  be  done ;  something  also  for  the  benefit  of  the 
indorser,  for  he  assumed  to  waive  it.  It  could  not,  therefore,  be  a  memorandum,  or  a 
declaration  made  by  a  notary,  because  neither  of  them  were  required.  Nor  could  ho 
have  intended  to  waive  that  which,  whether  pci-formed  or  omitted,  his  right  would  in  no 
manner  be  affected.  The  only  things  necessary  on  the  part  of  the  indorsees  were,  a 
demand  of  payment  of  the  maker,  and  notice  to  the  indorser.  By  waiving  the  neces- 
sity of  protest,  the  defendant  dispensed  with  both,  or  his  communication  is  destitute  of 
all  meaning.  It  was  argued,  indeed,  that  the  defendant  might  have  referred  to  the 
notarial  certificate  authorized  by  statute.  But  this  certificate  is  made  prima  facie  evi- 
dence of  a  demand  and  notice  in  favor  of  the  indorsees  It  is  for  tlieir  benefit.  The 
defendant,  in  making  such  reference,  must  have  supposed  that  the  certificate  was  neces- 
sary evidence,  because  he  waives  the  necessili/  of  a  protest  wiiich,  according  to  the  argu- 
ment, is  equivalent  to  dispensing  with  the  necessiti/  of  a  notarial  certijicate.  Now  to 
every  fair  mind  waiver  of  proof  necessary  to  establish  a  particular  fact  is  equivalent  to 
an  agreement  to  admit  it.  Whether,  therefore,  the  defendant,  by  waiving  the  necessity 
of  a  j)rotest,  intended  to  dispense  with  demanil  and  notice,  or  with  the  evidence  of  them, 
the  result  would  be  the  same ;  and  in  cither  case  he  is  concluded  by  his  own  stijuilation 
from  raising  the  objection  taken  upon  the  trial.  I  agree  with  the  learned  judge  who 
delivered  the  opinion  of  the  Suprem(!  Court,  that  the  circumstances  attending  tlic  writ- 
ten stijmlation  of  the  defendant  confirm  this  view  ;  but  I  prefer  to  rest  my  opinion  upon 
the  letter  alone,  as  furnishing  prima  facie  evidence  of  an  intent,  by  the  intlorser,  to 
waive  demand  of  payment  and  notice,  to  which  he  was  otherwise  entitled."  See  Scott 
r.  Greer,  10  Penn.  State,  103.  In  Duvall  v.  Farmers'  Bank,  7  Gill  &  J.  44,  9  id.  31, 
the  agreement  was  as  follows  :  "  Whereas  I  am  indorser  of  three  notes,  &c.,  and  '.vhcreas, 


CH.  XIII.]  EXCUSES   FOR  WANT   OF  NOTICE.  57S 

cable  to  a  foreign  bill  alone,  yet,  in  ordinary  language,  means 
the  taking  of  such  steps  as  the  law  requires  to  charge  an  in- 
dorser.  We  think  this  the  better  view,  for  several  reasons ; 
because  otherwise  the  agreement  can  have  no  meaning  what- 
ever ;  because  there  is  no  good  reason  why  a  written  instrument, 
purporting  to  constitute  a  waiver,  should  be  construed  differ- 
ently from  other  instruments;  and  from  analogy  to  the  cases 
respecting  the  form  of  notice,  where,  as  has  been  seen,(/i) 
the  word  "  protest,"  used  with  reference  to  a  note,  or  an 
inland  bill,  by  the  weight  of  authority,  means  that  the  ordi- 
nary steps  have  been  taken,  with  regard  to  the  note,  to  charge 
the  indorser. 

The  words  "eventually  accountable," (i)  "holden,"(y)  have 
been  said  to  imply  a  waiver  of  demand  and  notice. 

It  has  been  said  that  the  words  "  surety,"  or  "  security," 
placed  after  an  indorser's  name,  is  no  waiver  of  demand  and 
notice ;  (k)  but  this  may,  we  think,  be  doubted.  A  surety  on  a 
note  has  liabilities  essentially  distinct  and  separate  from  that  as 
indorser  ;  and  unless  the  fact  that  the  name  of  the  indorser  is 
written  on  the  back  of  the  note  necessarily  makes  him  an  in- 
dorser, and  nothing  more,  which  is  very  doubtful,  we   do  not 

at  my  request,  the  bank  which  holds  the  said  notes  has  agi'ced  not  to  protest  the  same, 
or  to  ask  a  renewal  of  them  when  they  become  due,  I  do  hereby  agree  to  dispense  with 
all  notice  of  the  time  of  payment,  or  of  the  non-payment  of  said  notes,  and  to  be 
answerable  for  the  amount  of  said  notes,  although  no  such  notice  is  given  to  me." 
Held  a  waiver  of  demand  and  notice  as  to  a  note  not  due  at  the  time  the  agreement 
was  signed. 

(A)  Supra,  p.  471. 

{i)  Weston,  C.  J.,  McDonald  v.  Bailey,  14  Maine,  101  ;  recognized  by  Shepley,  J., 
Burnham  v.  Webster,  17  id.  50. 

(j)  Bean  v.  Arnold,  16  Maine,  251,  where  the  note  was  overdue  at  the  time  of  in- 
dorsement; Shepley,  J.,  Burnliam  v.  Webster,  17  id.  50;  Blanchard  r.  Wood,  26  id. 
858.  where  the  note  was  not  due  at  the  time  of  indorsement. 

(k)  Bradford  v.  Corey,  5  Barb.  461,  Paige,  J.  said:  "In  this  case,  the  addition  of 
the  word  'surety'  or  'security'  to  the  indorsement  of  the  defendants' names  on  the 
note  in  question  did  not  divest  them  of  their  char.acter  of  indorsers.  The  only  effect 
of  the  addition  of  these  words  to  their  signatures  was  to  give  them  the  privileges  of 
sureties,  in  addition  to  their  rights  as  indorsers.  As  indorsers,  they  could  not  be  made 
liable  without  a  demand  and  notice ;  and  as  sureties,  they  were  entitled  to  all  the 
privileges  of  that  character."  This  is,  however,  only  a  dictum.  It  is  somewhat  diffi- 
cult to  see  what  is  meant  by  a  party  who  has  all  the  rights  of  an  indorser  with  all 
the  privileges  of  a  surety.  Previous  to  being  charged  by  demand  and  notice,  an  in- 
dorser is  an  indorser,  and  not  a  surety.  After  the  proper  steps  have  been  taken,  he 
Becomes  a  surety. 


580  NOTES  AND   BILLS.  [CH.  Xm. 

see  wlif  the  effect  of  these  words  is  not  to  make  him  a  surety, 
and  consequently  not  entitled  to  ordinary  demand  and  notice. 
The  word  "backer,"  placed  after  the  indorser's  name,  has  also 
been  held  to  be  no  waiver  of  demand  and  notice. (/) 

In  short,  whatever  words  constitute  a  guaranty  will  be  a 
waiver  of  regular  demand  and  notice ;  because,  as  will  be 
seen,(w)  the  ordinary  rules  with  regard  to  demand  and  notice 
are  inapplicable  to  guaranties.  What  form  of  words  amounts  to 
a  guaranty  will  be  considered  subsequently. (») 

But  although  an  instrument  purporting  to  constitute  a  waiver 
is  to  be  fairly  construed,  yet  it  cannot  be  extended  beyond  the 
import  of  its  terms.  Thus,  a  waiver  of  notice  is  not  a  waiver 
of  demand, (o)  because  the  two  have  meanings  entirely  distinct 
from  one  another,  and  it  would  be  an  unauthorized  stretch  of 
construction  to  declare  them  equivalent.  We  have  seen  that  the 
words  "  eventually  accountable  "  have  been  said  to  be  a  waiver 
of  both  demand  and  notice, (/>)  but  where  there  are  other  words 
which  limit  and  define  these,  the  case  may  be  different.  Thus, 
"  I  liold  myself  accountable,  and  waive  all  notice,"  have  been 
held  to  imply  waiver  of  notice  alone  ;  (q)  because  all  the  words 
take]i  together  show  such  to  be  the  intent.     But  an  agreement 


(I)  Seabury  v.  Hungerford,  2  Hill,  80. 

(m)  Lifra,  chapter  on  Guaranty. 

(n)  Infra,  chapter  on  Guaranty. 

(o)  Berkshire  Bank  v.  Jones,  6  Mass.  524;  Deivey,  J.,  Low  b.  Howard,  11  Cush. 
268,270;  Drlnkwater  v.  Tebbetts,  17  Maine,  16,  where  the  words  were,  "  Holden 
without  notice  "  ;  Burnham  v.  Webster,  id.  50,  where  the  words  were,  "  I  hold  myself 
accountable,  and  waive  all  notice  "  ;  Lane  v.  Steward,  20  id.  98  ;  Buchanan  v.  Mar- 
shall, 22  Vt.  561.  See  Backus  v.  Shipherd,  11  Wend.  629.  Cotitra,  Matthcy  v.  Gaily, 
4  Calif.  62. 

(/>)   Stt/tra,  p.  579. 

(7)  Burnham  v.  Webster,  17  Maine,  50,  where  Shcylcij,  J.  said  :  "In  this  case  there 
is  a  waiver  of  notice,  but  not  of  presentment,  unless  the  words,  '  I  hold  myself  account- 
a])le,'  taken  in  connection  with  the  other  words  used,  can  be  considered  as  dispensing 
with  a  presentment.  The  inquiry  is  suggested.  How  accountable''  And  the  answer 
would  seem  necessarily  to  be,  I  waive  all  notice,  and  hold  myself  accountable.  This 
answer  employs  every  word  of  the  instrument,  only  transposed,  and  gives  to  each  its 
proper  meaning.  To  give  a  different  answer  to  the  question,  and  say,  I  hold  myself 
accountable  absolutely,  would  dispense  with  the  words  "  and  waive  all  notice,"  giving 
to  them  no  meaning.  To  answer,  I  waive  all  notice  and  demand,  would  be  to  give 
greater  effect  to  the  words  than  the  decided  cases  permit.  The  indorser  may  say,  '  I 
did  indeed  waive  all  notice,  and  held  myself  accountable,  but  I  never  did  waive  a  pre- 
sentment, and  now  insist  upon  it' ;  and  the  court  cannot,  consistently  with  the  decided 
cases,  de])rivc  him  of  the  right  to  make  such  an  answer  " 


CH.  Xm.]  EXCUSES   FOR   WANT   OF   NOTICE.  581 

by  an  indorser  to  consider  himself  responsible  without  requiring 
notice,  if  the  note  could  not  be  collected  of  the  maker  by  due 
course  of  law,  has  been  held  a  waiver  of  both  demand  and 
notice,  (r) 

Bills  may  be  drawn  "  acceptance  waived."  This  docs  not 
deprive  the  instrument  of  its  character  as  a  negotiable  bill  of 
exchange,  but  its  effect  is  simply  to  merge  the  ordinary  proceed- 
ings on  acceptance  or  non-acceptance  into  those  of  payment  or 
non-payment.  (5) 

The  waiver  may  be  written  upon  the  note  or  bill  at  the  time 
of  signing ;  or  after  that  time  and  before  maturity,(^)  in  which 
case  no  consideration  is  necessary,  because  the  indorser  would 
be  estopped  from  setting  up  in  defence  a  want  of  demand  or  of 
notice ;  (w)  or  the  agreement  may  be  upon   a   separate   paper, 


(r)  Backus  v.  Shiphcrd,  11  "Wend.  629. 

(s)  See  English  v.  Wall,  12  Rob.  La.  132;  in  Denegre  v.  Milne,  10  La.  Ann.  324, 
Slidell,  C.  J.  said :  "  We  do  not  consider  the  expression  '  acceptance  waived,'  as  strip- 
ping the  instrument  of  the  character  of  a  bill  of  exchange,  or  depriving  its  signers  of 
the  character  and  rights  of  drawers  of  a  bill  of  exchange.  These  were  merely  quali- 
fied, and  to  this  extent ;  the  insertion  of  these  words  created  between  the  drawers  and 
the  payee,  and  those  subsequently  taking  the  bill,  an  agreement  that  the  drawees  should 
not  be  required  to  accept  the  bill  upon  its  sight.  Without  these  words,  it  would  have 
been  the  holder's  right  to  insist  upon  an  acceptance  upon  presentment,  protest  the  bills 
if  acceptance  were  refused,  and  take  his  immediate  recourse  against  the  drawers.  With 
them,  he  had  only  the  right  to  exhibit  the  bill  for  sight,  to  fix  the  date  of  maturity, 
which  was  done;  and  was  bound  to  wait  until  maturity  for  payment  by  the  draw- 
ees, at  which  time  the  drawers  engaged  it  should  be  paid  by  the  drawees.  Upon 
failure  of  payment,  protest,  and  notice,  the  liability  of  the  drawers,  which  was  previ- 
ously conditional,  would,  in  general,  become  absolute.  No  adjudged  case  militating 
with  this  view  of  the  rights  of  those  parties  has  been  referred  to  or  cited ;  and  we  are 
satisfied  that  the  construction  we  give  would  be  in  accordance  with  the  understanding 
of  men  of  business,  and  meets  the  understanding  of  the  parties  themselves  when  the  bill 
was  drawn  and  negotiated.  The  validity  of  the  instrument  as  a  bill  of  exchange,  its 
essential  character  as  a  bill  of  exchange,  are  not  destroyed  by  such  a  qualification. 
[t  is  still  a  request  to  the  drawee  by  the  drawer,  to  pay  a  sum  of  money  to  the  payee, 
or  his  order,  absolutely,  and  at  a  time  mentioned  in  the  bill." 

(t)  Wall  V.  Bry,  1  La.  Ann.  312. 

(u)  In  Wall  V.  Bry,  1  La.  Ann.  312,  SlldcU,  J.  said  :  "It  is  proved  that  the  indorse- 
ment of  the  defendant  was  made  some  months  anterior  to  the  indorsement  and  signa- 

tare  of  the  waivers The  defendant  urges  that  it  was  not  binding,  because  made 

without  consideration.  The  pica  that  the  waiver  was  without  consideration  cannot  avail 
the  defendant.  It  was  made  before  the  maturity  of  the  note ;  the  holder  may  have 
regulated  his  conduct,  in  not  protesting  the  note,  by  the  defendant's  waiver,  confiding 
in  it;  and  to  relieve  him  from  it  now  would  be  sanctioning  a  breach  of  good  faith,  and 
pen.iitting  that  party  to  gain  by  his  own  disingcnuousness." 
49* 


582  NOTES   AND   BILLS.  [CH.  Xm. 


coiiten:^poraneous  with,  or  subsequent  to,  the  indorsement, (z;) 
even  before  the  note  is  indorsed,  (t^;) 


or 


2.   WJien  the  Waiver  is  inferred  from  Ads  of  the  Indorser  or 

Drawer. 
Demand  and  notice  may  be  waived  by  an  act  of  the  indorser 
or  drawer,  calculated  to  put  the  holder  off  his  guard,  and  pre- 
vent him  from  treating  the  note  as  he  would  otherwise  have 
done. (a:)  Or  where  the  indorser  or  drawer  has  himself  been  the 
means  of  preventmg  the  note  or  bill  from  being  honored. (//) 
Thiis,  when  the  indorser  received  a  written  agreement  from  the 
holder,  in  which  the  latter  promised  to  sue  the  makers,  and  to 
use  all  due  diligence  to  collect  the  note  from  them,  demand 
and  notice  were  held  to  be  waived. (2)  Also,  where  the  indorser, 
by  agreement  with  the  holder,  agreed  to  extend  the  time  of  pay- 
ment, (a)     Or  where  such  agreement,  for  a  valuable  considera- 

[v)  Spencer  v.  Harvey,  1 7  Wend.  489,  where  the  indorser  wrote  to  the  holder  a  few 
days  before  maturity,  stating  that  the  maker  had  failed,  acknowledging  liis  liability, 
and  asking  an  indulgence  until  funds  could  be  realized  from  security  given  by  the 
maker.  Held  a  waiver  of  demand  and  notice.  Coddington  ?).  Davis,  1  Comst.  186, 
3  Denio,  16 ;  Duvall  v.  Farmers'  Bank,  7  Gill  &  J.  44,  9  id.  31. 

[w)  See  Union  Bank  v.  Hyde,  6  Wheat.  572.  For  the  words  of  tliis  agreement,  see 
supra,  p.  576,  note  e.  The  case  does  not,  however,  state  whether  the  instrument  was 
signed  before  the  note  in  suit  was  indorsed.  Sec  also  Duvall  v.  Farmers'  Bank,  7  Gill 
&  J.  44,  9  id.  31,  where  there  was  one  note  not  indorsed  until  after  the  agreement. 

(x)  Gove  r.  Vining,  7  Met.  212;  Spencer  v.  Harvey,  17  Wend.  489;  Bruce  v. 
Lytle,  13  Barb.  163;  Taylor  v.  French,  4  E.  D.  Smith,  458;  Phipsou  v.  Kncllcr,  I 
Stark.  116. 

(y)  Minturn  v.  Fisher,  7  Calif  573. 

(z)  Kyle  V.  Green,  14  Ohio,  490.  In  Bcnoist  v.  Creditors,  18  La.  522,  the  drawer 
took  a  receipt  from  the  payee,  in  which  it  was  agreed  that  the  bill  should  not  be  pro- 
tested, in  order  to  save  costs.  The  funds  for  wliich  the  bill  was  drawn  were  tlicn  in 
litigation.     Held  that  notice  to  the  drawer  was  not  necessary. 

(a)  Amoskeag  Bank  v.  Moore,  37  N.  H.  539,  where  tlie  indorser,  a  few  days  before 
maturity,  signed  the  following  agreement  at  the  foot  of  the  note  :  "  Sept.  25,  1855. 
We  hereby  agree  that  the  above  note  may  be  extended  for  sixty  days  from  this  date." 
On  the  25th  of  September  the  makers  paid  tlie  plaintiff  the  interest  in  advance  for  the 
sixty  days,  which  was  indorsed  on  the  note  as  interest  jjaid  for  that  time.  No  demand 
was  made  upon  the  makers,  cither  at  maturity  or  at  the  cxjjiration  of  the  extended  time. 
Notice  bad  been  expressly  waived.  The  defendant  was  held.  In  Hidgway  v.  Day, 
13  Penn.  State,  208,  the  plaintiff  wrote  to  the  defendant  before  maturity,  informing  him 
that  the  maker  could  not  probably  pay,  and  offering  to  extend  the  time  of  payment. 
The  dcfiiidatit  agreed,  and  wrote,  in  reply,  that  he  was  "willing  to  extend  the  time  for 
thirty  days  longer,  and  of  course  will  stand  rcs|)()nsible  for  the  payment  of  the  note  as 
origiinilly  intended."  One  or  two  further  extensions  were  made.  Held  a  waiver 
of  all  demand  and  notice.     See  also  the  cases  cited  infra. 


CH.  XIII.]  EXCUSES   FOR   WANT   OF  NOTICE.  583 

tioii,  lias  been  made  between  the  maker  and  the  mdorser,  and 
the  hitter  has  transferred  the  note  to  the  plahitiff,  who  was 
wholly  ignorant  of  the  agreement. (&)  So  where  the  drawer  de- 
posited a  particular  kind  of  funds  with  the  payee  and  indorser, 
under  an  agreement  between  the  parties  that  the  proceeds  of  the 
funds  were  to  be  applied  to  the  payment  of  the  bills,  when  due, 
such  arrangement  was  held  to  be  a  waiver  of  presentment,  and 
the  indorser  entitled  to  sue  the  drawer,  if  the  funds  were  not 
paid  according  to  the  agreement,  (c)  So  demand  and  notice  are 
waived  where  the  drawer  of  a  check  stops  its  payment  at  the 


(b)  Williams  v.  Brobst,  10  Watts,  111.  Kennedy,  J.  said  :  "It  is  further  allcj^ed  in 
the  declaration,  that  the  defendant,  after  receiving  the  note  from  the  maker,  and  before 
he  passed  it  by  indorsement  to  the  plaintiff,  ....  agreed  to  forbear  payment  thereof  until 
one  year  after  the  time  mentioned  in  the  note  for  that  purpose ;  and  that  he  passed  the 
note  to  the  plaintiff,  who  was  altogether  ignorant  of  this  agreement,  without  advising 
him  of  it."  The  judge,  after  stating  that  it  must  be  taken  for  granted  that  the  consid- 
eration was  a  valuable  one,  continued  :  "  These  facts  show  clearly  that  the  defendant 
had  not  dealt  fairly  with  the  j)laiiitiff,  ....  by  suppressing  the  agreement  which  he  had 
previously  made  with  the  maker  of  the  note,  postponing  the  day  of  its  payment.  This 
was  certainly  a  very  important  circumstance,  because  it  rendered  the  note  of  less  value, 
and  ought,  therefore,  to  have  been  disclosed  by  the  defendant  to  the  plaintiff  at  the  time 
he  offered  to  indorse  it  to  him.  After  having  made  such  an  agreement  with  the  maker 
of  the  note,  for  which  he  had  received  a  valuable  consideration,  it  would  also  have 
been  a  fraud  in  him  to  have  permitted  the  maker  to  be  called  on  and  compelled  to  pay 
it  before  the  time  had  arrived  to  which  it  was  agreed  between  him  and  the  maker  that 
the  payment  of  it  should  be  postponed.  Upon  this  ground,  therefore,  he  had  no  right 
to  require  that  the  drawer  should  be  called  on  first  for  payment,  as  soon  as  the  note, 
according  to  its  terms,  became  payable ;  but,  on  the  contrary,  was  bound  himself,  in 
justice  to  the  maker,  to  have  prevented  it,  by  calling  upon  the  plaintiff  and  paying  the 
amount  thereof,  so  that  the  maker  should  have  the  benefit  of  the  indulgence  agreed  on 

between  them The  reason  why  the  law  requires  that  the  indorsee  of  a  note  or  bill 

shall  give  notice  to  the  indorser  of  non-payment  is,  that  he  may  take  the  necessary 

measures  to  obtain  payment  from  the  party  or  parties  respectively  liable  to  him 

But  the  defendant  had  no  right  to  claim  notice,  because  if  he  had  paid  the  plaintiff,  and 
taken  up  the  note  when  at  maturity,  according  to  its  face,  he  would  have  had  no  right 
to  demand  payment  of  the  maker  for  a  year  afterwards.  It  is  no  objection  to  this 
course  of  reasoning,  that  the  plaintiff  might,  notwithstanding  the  agreement,  as  he  was 
ignorant  of  it  when  he  took  the  note,  for  a  valuable  consideration,  in  the  ordinary 
course  of  business,  have  compelled  the  maker  to  pay  it  as  soon  as  it  came  to  maturity, 
according  to  its  terms,  because  it  would  have  deprived  the  maker  of  the  indulgence 
which  the  defendant  was  bound  to  give  him  ;  and  it  does  not  lie  in  the  mouth  of  the 
defendant  to  say  that  he  ought  not  to  be  made  liable  himself  to  pay  the  amount  of 
the  note  to  the  plaintiff,  because  the  latter  did  not  compel  payment  of  the  note  from 
fhe  maker,  when  it  would  have  been  a  fraud  in  the  defendant  to  have  permitted  it,  and 
not  to  have  prevented  it  by  paying  the  amount  thereof  himself" 

("^  Curtiss  V.  Martin,  20  111.  557. 


584  NOTES   AXD   BILLS.  [CH.  XHI. 

bank  whore  it  is  payable ;  (d)  and  the  same  is  true,  we  think, 
witli  reference  to  the  drawer  of  a  bill  who  has  ordered  the 
drawee  not  to  accept ;  (e)  but  there  is  a  Nisi  Prius  case,  which 
holds  that  this  amounts  to  a  waiver  of  notice,  but  not  of  de- 
mand. (/)  So  where  an  indorser  obtains  possession  of  the  note 
before  maturity,  and  withholds  it  until  after  that  time,  demand 
and  notice  are  waived. (.^) 

There  has  been  some  conflict  on  the  point  whether  a  parol 
promise  to  pay  the  note,  made  at  the  time  of  endorsing,  or  a 
parol  agreement  between  the  parties  that  payment  should  not  be 
demanded  until  after  maturity,  is  admissible  to  prove  a  waiver 
of  demand  and  notice. (A)     Some  of  the  earlier  cases  deny  its 

^<^rr*^'-  admissibility,  on  the  ground  that  the  indorsement  is  a  written 
contract  that  regular  demand  shall  be  made  and  notice  given, 

^    ^^^\v\nc\\  cannot  be  waived  by  a  contemporaneous  parol  agreement. 

._^^^p/^ut  we  do  not  think  this  to  be  law,  and  are  of  opinion   that 

'  ^""""^  the  evidence  may  be  introduced,  because  the  conti'act  is,  not 
that  demand  shall  be  made  and  notice  given,  but  that  due  dili- 
gence shall  be  used  ;  and  evidence  is  admissible  to  prove 
that  such  diligence  has  been  uscd.(t)     Indeed,  the  law  seems 


(d)  Jiuks  V.  Dan-in,  3  E.  D.  Smitli,  557  ;  Purchase  v.  Mattison,  6  Ducr,  587. 

(e)  Lilley  v.  Miller,  2  Nott  &  McC.  257,  note  a;  Sutdiffe  v.  IM'Dowcll,  id  251. 
(/)  lim'v.  Heap,  Dow  &  R.,  N.  P.  57.     Scdqtiwre. 

(g)  See  Havens  v.  Talbott,  11  Ind.  323.  There  was  also  a  promise  iniule  by  the  de- 
fendant, before  maturity,  to  pay  the  note. 

(h)  In  the  following  cases  it  was  held  inadmissible.  Barry  v  Morse,  3  N.  H.  132  ; 
Hightower  v.  Ivy,  2  Port.  Ala.  308.  In  Fiee  v.  Hawkins,  Holt,  N.  P.  550,  8  Taunt.  92, 
the  evidence  was  rejected.  The  court  relied  upon  Iloare  v.  Graham,  3  Camp.  57,  as 
authority.  But  there  is  an  obvious  distinction  between  the  two  cases.  In  the  latter, 
the  indorser's  defence  was,  that  the  suit  was  premature,  because,  although  it  was 
brought  after  the  note  matured,  by  a  parol  iigreemcnt  the  note  was  not  to  be  sued 
until  a  subsequent  period.  So  it  is  settled  that  a  maker  cannot  object  to  a  suit  on  tho 
same  ground.  But  the  evidence  on  the  point  now  under  consideration  is  not  offered  to 
show  that  the  indorser's  lial)ility  accrued  at  a  different  time  from  that  mentioned  in  tho 
note,  but  that  the  proper  steps  required  by  law  had  been  taken. 

(i)  Barclay  v.  Weaver,  19  Pcim.  State,  396,  where  Lowrie,  J.,  liaving  decided,  at 
Nisi  Prius,  that  the  evidence  was  inadmissible,  changed  his  opinion  after  argument 
before  the  full  bench.  He  said,  tlic  question  now  is :  "  May  a  party  prove,  by  oral 
testimony,  that,  at  the  time  of  the  indorsement  of  a  promissory  note,  it  was  agreed  that 
the  indorser  siiould  be  absolutely  bound  for  the  jtayment  of  it,  without  the  usual  de- 
mand and  notice?  This  was  answered  in  tlic  negative,  in  tho  court  below,  on  the 
principle  that  oral  testimony  cannot  be  hcaid  to  vary  the  terms  of  a  written  contract. 
Tlic  error  consists  in  the  assumption  that  the  law  regards  an  indorsement  an  a  writ  en 
contract  to  pay,  on  condition  tliut  the  usual   drmaiid  be  made  and  notice  giv.n.     It  ia 


CH.  XIII.]  EXCUSES    FOR   WANT   OF   NOTICE.  585 

quite   clearly  settled,  that   a   parol  promise   to   pay,  made   b} 
the   \udorser  to  the  indorsee,  at  the  time  oi^,(j)   or  subsequent 

not  so.  For  where  the  indorser  is  himself  the  real  debtor,  as  in  the  case  of  accommo- 
dation notes  and  l)ills,  or  has  taken  an  assignment  of  all  the  property  of  the  maker  as 
security  for  his  indorsement,  or  wlicre  he  can  have  no  remedy  against  the  maker,  or  in 
the  case  of  the  drawer  of  a  bill  of  excliange,  whore  tlic  drawee  is,  and  during  the  cur- 
rency of  the  bill  continues  to  be,  without  funds  of  the  drawer,  and  in  many  other  such 
cases,  demand  and  notice  are  not  necessary  ;  and  these  circumstances  may  be  proved 
by  parol  testimony.  The  reason  is,  that  in  such  cases  demand  and  notice  can  be  of  no 
use,  and  therefore  the  law  does  not  require  them.  The  most,  therefore,  that  can  be  said 
of  an  indorsement  of  negotiable  paper  is,  that  from  it  there  is  implied  a  contract  to  pay, 
on  condition  of  the  usual  demand  and  notice;  and  that  this  im])lication  is  liable  to  be 
changed  on  the  appearance  of  circumstances  inconsistent  with  it,  whether  those  circum- 
stances be  shown  orally  or  in  writing.  But  it  may  well  be  questioned  whether  the 
condition  of  demand  and  notice  is  truly  part  of  the  contract,  or  only  a  step  in  the  legal 
remedy  upon  it.  If  it  is  part  of  the  contract,  how  can  it  be  effectually  dispensed  with, 
without  a  new  contract,  for  a  sufficient  consideration,  especially  after  the  maturity  of 
the  note  ?  Yet  there  are  decisions  without  number,  that  a  waiver  of  it,  during  cur- 
rency or  after  the  maturity  of  the  note,  will  save  from  the  consequences  of  its  omission. 
This  could  not  be  if  it  was  a  condition  of  tlie  contract,  for  then  the  omission  of  it 
would  discharge  the  indorser  both  morally  and  legally;  and  no  new  promise  after- 
wards, even  with  full  knowledge  of  the  fiicts,  could  be  of  any  validity.  If,  however, 
an  indorsement,  without  other  circumstances,  be  regarded  as  an  implied  contract  to 
pay,  provided  tiie  holder  use  such  diligence  that  the  indorser  lose  nothing  by  his  negli- 
gence or  indulgence,  then  it  accords  with  all  these  decisions.  Then  the  law,  and  not 
the  contract,  declares  the  usual  demand  and  notice  to  be  in  all  cases  conclusive,  and 
in  some  cases  necessary,  evidence  of  such  diligence.  The  law  imposes  no  vain  duties, 
and  its  general  rules  are  subjected  to  exceptions  in  order  to  dispense  with  them ;  but  it 
does  not  thus  deal  with  contract  duties.  It  is,  therefore,  perfectly  consistent  in  declar- 
ing tiiat  an  indorser  is  bound  by  a  new  promise,  after  he  knows  of  the  omission  of 
demand  and  notice;  for  this  is  an  admission  that  he  was  not  entitled  to  it,  or  has  not 
suffered  for  want  of  it.  It  declares  demand  and  notice  necessary,  in  some  cases,  to 
save  the  indorser  from  loss,  and  it  declares  that  his  own  admission  may  be  substituted 
for  them.  It  seems,  tlierefore,  that  the  duty  of  demand  and  notice,  in  order  to  hold 
an  indorser,  is  not  a  part  of  tlie  contract,  but  a  step  in  the  legal  remedy,  that  may  be 
waived  at  any  time,  in  accordance  with  the  maxim,  Qnilihet  potest  renunciare  juri  pro  se 
introdur.to ;  and  certainly  an  indorsement  is  not  regarded  as  a  written  contract,  so  far  as 
to  prevent  oral  proof  that  its  terms  differ  from  the  ordinary  contract  of  indorsement." 
In  the  following  cases  it  was  held  that  a  waiver  might  be  proved  by  parol.  Boyd  v. 
Cleveland,  4  Pick  .525  ;  Taunton  Bank  v.  Richardson,  5  id.  436  ;  Fuller  v.  McDon- 
aid,  8  Greenl.  213;  Drinkwater  v.  Tebbetts,  17  Maine,  16;  Lane  v.  Steward,  20  id. 
98 ;  P^dwards  ?;.  Tandy,  36  N.  H.  540  ;  Farmers'  Bank  v.  Wat)les,  4  Harring.  Del.  429. 
(j)  In  Boyd  v.  Cleveland,  4  Pick.  525,  the  holder  remarked  to  the  defendant  at  the 
time  the  note  was  received,  that  he  had  no  confidence  in  the  otiier  parties  to  the  note, 
H,nd  did  not  know  them,  and  should  look  wholly  to  the  defendant.  The  defendant  said 
he  should  be  in  New  York,  where  the  plaintiff  lived,  when  the  note  became  due,  and 
would  take  it  up  if  it  were  not  paid  by  any  other  party  to  it.  Held  a  waiver  of  notice, 
and  that  an  unsuccessful  attempt  on  the  part  of  the  plaintiff  to  notify  the  defendant 
did  not  affect  the  question.  See  Taunton  Bank  v.  Richardson,  5  Pick.  436  ;  Fuller 
r.  McDonald,  8  Greenl.  213,  where  the  indorser,  at  the  time  the  note  was  transferred, 


5S6  NOTES    AND   BILLS.  [CH.  XEI. 

to, (A)   the  indorsement ;   an  agreement  to  extend  the  time  of 

agreed  to  pay  the  note  if  the  maker  did  not,  and  the  holder  took  it,  relying  upon 
thd  inlorser's  credit;  Lane  v.  Steward,  20  Maine,  98,  where  the  indorser  piomised 
to  pay  if  the  maker  should  not.  There  was  also  a  promise  subsequent  to  maturity. 
In  Wall  V.  Bry,  1  La.  Ann.  312,  there  was  a  verbal  agreement  between  the  indorser 
and  the  holder,  that  the  former  was  to  be  responsible  only  in  case  payment  could  not 
be  obtained  from  the  maker.  Held  that  notice  was  waived.  It  docs  not  appear 
whether  the  agreement  was  made  at  the  time  the  note  was  transferred  or  subse- 
quently. Contra,  Staples  v.  Okines,  1  Esp.  332.  In  this  case  the  acceptor  was  in- 
debted to  the  drawer  at  the  time  the  bill  was  drawn,  but  then  informed  the  latter  that 
he  would  not  be  able  to  provide  for  the  bill.  It  was  understood  between  them  that 
the  drawer  was  to  provide  for  the  bill  when  due.  Notice  to  the  drawer  was  held  neces- 
sary. Lord  Kenyon  said  :  "  The  law  was  general,  only  exempting  the  party  from  the 
necessity  of  giving  notice  where  the  drawee  had  no  effects ;  and  as  here  the  drawee 
was  indebted  to  the  defendant,  on  whom  the  bill  was  drawn,  and  so  in  fact  had  effects 
in  hand,  and  if  he  had  had  effects  in  hand  when  the  bill  became  due,  would  have 
taken  it  up,  he  was  of  opinion  that  notice  was  necessary."  So,  in  Davis  r.  Gowen,  19 
Maine,  447,  the  plaintiff"  told  the  indorser,  at  the  time  the  note  was  transferred,  that 
he  would  not  take  the  note  unless  the  indorser  would  pay  it  at  maturity,  and  that  ho 
would  not  look  to  any  other  person  for  it.  This  statement,  the  defendant  being  called 
on  for  payment,  was  not  denied.  The  court  said  :  "  The  defendant  might  have  agreed 
to  pay  the  note  at  maturity,  and  the  plaintiff  may  have  apprised  him,  when  he  received 
the  note,  that  he  relied  altogether  upon  him ;  yet  the  agreement  of  the  defendant  must 
be  understood  to  have  been  made  with  the  implied  reservation,  that,  if  the  maker  paid, 
he  was  not  to  be  liable.  He  did  not  discharge  the  holder  from  the  duty  imposed  upon 
him,  to  demand  payment  of  the  maker  at  the  maturity  of  the  note.  Tiiere  is  not 
sufficient  evidence  in  the  case  to  change  or  modify  his  legal  liability  arising  from  the 
indorsement." 

(/■;)  Sigerson  v.  Mathews,  20  How.  496,  where  the  defendant  told  the  plaintiff,  six 
months  after  indorsing,  and  eighteen  months  before  maturity,  not  to  protest  the  note, 
as  it  should  be  paid  at  maturity.  Held  a  waiver  of  demand  and  notice.  Whiiney  r. 
Abbot,  .")  N.  H.  378,  where  the  indorser  told  the  holder,  a  month  before  maturity,  it 
being  ascertained  that  the  makers  had  failed,  that  he  should  have  no  trouble  about  tlie 
note,  tiiat  he,  the  indorser,  would  pay  it,  and  was  going  to  procure  money  to  pay  it. 
Held  a  waiver  of  demand  and  notice.  Edwards  v.  Tandy,  36  N.  H.  540.  In  Leonard 
V.  Gary,  10  Wend.  .504,  the  note  was  payable  at  ten  days'  notice.  Demand  was  made 
on  Dec.  7th,  and  on  Dec.  12th  the  defendant  told  tiic  ])laintiff,  that  when  lie  indorsed 
paper,  he  indorsed  it  to  pay;  that  he  would  see  the  plaintiff  paid,  if  it  took  every  cent 
in  his  pocket;  he  asked  the  plaintiff  to  give  him  time  ;  offered  to  give  his  note  for  the 
debt,  payable  in  a  year,  and,  whether  the  plaintiff  would  take  it  or  not,  lie  should  be 
paid  ;  and  said  that  tiie  plaintiff  need  give  himself  no  uneasiness  about  it,  as  he  would 
see  him  paid,  if  it  came  out  of  his  own  pocket.  Held  a  waiver  of  demand,  at  the  ex- 
piration of  the  ten  days,  and  of  notice.  In  Bruce  v.  Lytic,  13  Barb.  163,  the  defendant 
told  the  plaintiff,  the  day  before  maturity,  that  he  would  pay  and  take  up  the  note  in 
three  or  four  days.  Five  days  after  maturity,  an  insufficient  demand  was  made  and 
notice  eiven.  The  defendant  was  held  princi|)ally  on  the  ground  that  demand  and 
notice  had  been  waived.  Wall  v.  Bry,  1  La.  Aim.  312,  s«/i»a,  note  ;'.  In  J.,ary  r. 
Young,  8  Etig.  Ark.  401,  tiic  attorney  of  the  holder  reminded  the  indorser,  a  few 
days  before  maturity,  that  the  note  would  soon  be  due,  and  that  the  nu'kers  had  left 
town.     The  indorser  said  that  he  owed   the  note  ;  that  it  was  all   right ;  that  be  'lud 


CH.  Xm.]  EXCUSES   FOR   WANT   OF  NOTICE.  587 

the  payment ;  (Z)  a  request  made  by  the  indorser  for  forbear 


indorsed  it  to  pay  it;  and  if  he  was  not  there  when  it  became  due,  that  his  agent  would 
pay  it.  Held  a  waiver  of  demand  and  notice.  In  Norton  v.  Lewis,  2  Conn.  478,  de- 
mand was  made  and  notice  given  the  day  before  maturity.  But  the  defendant,  an 
indorser,  in  consideration  that  the  holder  of  the  note  would  wait  until  a  future  period 
before  suing,  agreed  to  pay  the  note.  The  defendant  was  held.  Collainer,  J.,  Kussell 
V.  Buck,  11  Vt.  166,  17.5;  Bmnelt,  J.,  id.  182.  See  Burgh  v.  Lcgge,  5  M.  &  W.  418. 
Contra,  Davis  v.  Gowen,  19  Maine,  447,  where  the  evidence  was,  that  the  attorney  of  the 
plaintiff,  on  the  tirst  day  of  grace,  demanded  payment  of  the  defendant,  saying  that  the 
])laintitf  had  directed  the  note  to  be  sued  immediately.  The  defendant  replied  that  he 
would  i)ay  it  immediately,  or  see  it  paid.  There  was  also  a  verbal  agreement  or  under- 
standing at  tlie  time  the  note  was  transferred.  Supra,  p.  586,  notej.  Held  no  waiver 
of  regular  demand  and  notice  In  Jervey  v.  Wilbur,  1  Bailey,  4.53,  the  plaintiff's 
attorney,  in  whose  hands  a  note  had  been  left  for  collection,  said  to  the  defendant,  who 
was  an  indorser  of  that  note,  that  the  plaintiff  held  other  notes  with  his  indorsement 
on  them  ;  and  that  he,  the  attorney,  would  give  him  no  notice  of  the  next  suit  be- 
fore issuing  process  against  him.  The  defendant  replied  that  he  wanted  none ;  for 
he  knew  the  maker  was  insolvent,  and  that  the  rest  of  the  notes  must  be  paid  by 
himself,  which  he  would  take  care  to  do,  before  they  could  get  into  the  attornev's 
hands.  Held  no  waiver  of  notice  as  to  the  notes  not  then  due.  One  of  the  grounds, 
however,  for  the  decision  was,  that  the  declaration  was  made  to  a  third  party,  who,  at 
the  time,  had  no  authority  to  represent  the  plaintiff.  In  Baker  v.  Birch,  3  Camp.  107, 
the  acceptor  told  the  drawer,  a  few  days  before  maturity,  that  he  could  not  pay  tho 
bill,  and  that  the  latter  must  take  it  up.  He  also  gave  the  drawer  part  of  the  amount, 
to  enable  him  to  do  so.  The  drawer  received  the  money,  and  promised  to  take  up 
the  bill.  It  was  held,  that  the  drawer  might  still  set  up  want  of  due  presentment 
and  notice  in  defence  ;  and  that  tlie  money  rcceived  might  be  recovered  as  nionev  had 
and  received  to  the  plaintiff's  use. 

(/)  Supra,  p.  582,  note  a.  In  Williams  v.  Brobst,  10  Watts,  111,  cited  supra,  p.  583, 
notey,  it  is  not  stated  whether  the  agreement  was  by  parol  or  written.  In  Barclay  v. 
Weaver,  19  I'cnn.  State,  396,  a  parol  agreement  to  extend  the  time  of  payment  was  held 
a  waiver  of  demand  and  notice.  In  Farmers'  Bank  v.  Waplcs,  4  Harring.  Del.  429,  the 
indorser  simply  asked  the  bank  not  to  protest  the  note,  saying  that  he  would  always  renew 
his  indorsement,  and  hold  himself  liable,  without  protest  and  notice.  The  note  had  been 
allowed  to  lay  over  several  times,  and  had  been  several  times  renewed.  Demand  and 
notice  were  held  to  be  waived.  But  in  Oswego  Bank  v.  Knower,  Hill  &  D.  122.  the 
defendants  had  given  to  the  maker  several  blank  indorsements,  without  the  notes  being- 
filled  up.  The  maker  had  used  them  fbr  the  purpose  of  procuring  discounts  at  the  bank 
of  which  he  was  president.  The  notes  in  suit  grew  out  of  accommodations  at  the 
bank,  for  the  benefit  of  the  maker,  which  had  commenced  several  years  before  these 
notes  were  made,  which  notes  were  given  in  consequence  of  various  renewals  made 
from  time  to  time.  None  of  the  notes  had  been  protested,  by  direction  of  tlip  presi- 
dent. The  judge  charged  the  jury,  that,  if  the  defendants  knew  that  the  previous  notes, 
the  predecessors  of  those  in  suit,  fell  due,  and  they  received  no  notice,  and  then  again 
indorsed  the  notes  given  in  renewal,  that  they  might  infer  a  waiver  of  notice  in  respect- 
to  the  note  in  question.  This  charge  was  held  incorrect.  Nelson,  C.  J.  said :  "  Suppose 
a  power  of  attorney  had  been  given  to  use  the  name  of  the  defendants'  firm  as  accom- 
modation indorsers,  which  would  have  been  no  very  uncommon  case,  could  the  idea 
have  been  entertained,  for  a  moment,  that  the  simple  indorsement  would  have  made 
them  absolutely  liable,  or  laid  any  foundation  for  such  an  infereace  ?     I  apprehend 


588 


NOTES   AND    BILLS. 


[CH.  XIIL 


ance  ;  (m)  an  agreement  with  a  bank  at  which  a  note  is  discounted, 
to  attend  to  and  take  care  of  it,  with  directions  that  the  bank  notice 
for  the  maker  should  be  sent  to  the  care  of  the  indorser,  even 
thouo'h  the  agreement  is  made  before  the  time  of  deliveriiio;  the 


nobody  would  contend  for  the  proposition.  And  these  blank  indorsements  are  nothing 
more  than  a  standing  power  to  that  effect.  If  the  defendants  had  intended  to  dispense 
with  notice,  they  would  have  signed,  as  makers,  at  once,  and  become  absolutely  bound. 
The  very  f\ict  of  confining  their  security  on  the  paper  to  the  character  of  indorsers, 
shows  that  they  meant  to  limit  their  liability  accordingly,  and  to  be  entitled  to  all  the 
benefits  incident  to  it.  An  indorsement  in  blank,  in  judgment  of  law,  is  as  precise  and 
distinct,  and  as  well  known  and  understood,  as  if  the  liability  or  condition  of  the  usual 
demand  and  notice  had  been  written  out  upon  the  back  of  the  paper;  and  nothing  short 
of  the  clearest  evidence  of  the  assent  of  the  defendants,  express  or  implied,  siiould  be 
regarded  as  suflScient  to  waive  the  condition  or  change  the  nature  of  the  contract, 
making  it  an  absolute  instead  of  a  conditional  one.  Upon  the  whole,  I  am  satisfied 
that,  to  allow  the  circumstances  put  forth  here,  whether  taken  separately  or  in  the 
aggregate  as  laying  the  foundation  for  an  inference  of  a  waiver  of  demand  and  notice, 
would  be  going  forther  than  any  case  has  yet  gone  in  dispensing  with  the  contract  of 
the  indorser,  and  ftirtber  than  will  be  consistent  with  the  uniformity  and  stability  of  the 
law,  so  important  in  respect  to  commercial  paper.  Indeed,  if  we  analyze  the  facts  in 
the  case,  and  reduce  them  to  the  particulars  bearing  upon  the  defendants,  and  for  which 
they  may  properly  be  held  responsible,  it  will  be  found  that  there  is  little  else  in  it 
deserving  the  name  of  evidence,  independently  of  the  unlimited  power  given  to  the 
brother  to  use  the  name  of  their  firm  as  indorsers,  leading,  even  in  the  remotest  degree, 
to  an  assent  to  the  waiver.  And  we  can  hardly  be  expected  to  infer  it  from  the  fact 
tiiat  the  power  given  to  indorse  is  a  general  one.  On  the  contrary,  we  sujipose  that 
the  limitation  of  the  liability  assumed  to  that  of  indorsement,  and  that  only,  shows 
clearly  enough  an  intention  to  stand  upon  the  ]iapcr  in  that  character,  and  in  tliat 
only,  however  extended  and  onerous  the  liability  might  become." 

(m)  Lcffingwcll  v.  White,  1  Johns.  Cas.  99,  where  the  indorser  informed  the  holder 
that  the  maker  had  absconded,  and  said  that,  being  secured,  he  would  give  a  new  note, 
and  requested  time.  While  these  negotiations  were  pending,  the  note  fell  due.  De- 
mand and  notice  were  held  to  be  waived.  Gove  v.  Vining,  7  Met.  212,  where  tiio 
note  was  payable  at  either  bank  in  Boston.  On  the  first  day  of  grace  the  holder  sent 
a  messenger  with  the  note,  and  a  written  notice  to  the  indorser  requesting  jiayment,  to 
'■  the  house  where  the  maker  and  indorser  both  resided.  The  maker  was  absent,  but  tiie 
indorser  read  the  notice,  and  told  the  messenger  that  the  maker  would  sec  the  holder  in 
a  short  time,  and  expressed  a  wish  that  the  note  should  not  be  sued  until  the  indorscj 
should  see  the  holder.  No  demand  was  afterwards  made  of  the  maker,  nor  any  notice 
given  to  the  indorser.  Shaw,  C.  J.  said :  "  Although  this  was  stated  as  the  rccpiest  of 
the  prdmisor,  yet  it  was  made  by  the  indorser,  without  any  restriction  or  qinililicatiou 
on  lier  part,  and  therefore  may  be  considered  the  same  as  if  it  were  her  own.  It  was, 
thfTefore,  a  request  by  the  indorser  to  the  holilers,  through  their  agent,  with  full  notice 
thit  the  note  was  then  nominally  due,  though  not  legally  j)ayable  till  tiiree  days  after, 
fo'  forbearance  of  ])ayment.  It  was  calculated  to  induce  the  holder  to  believe  that  tlio 
pi-Zties  who  were  liable  were  about  making  some  an-angement  or  some  jiroposal  by 
Wliich  it  would  be  paid,  if  he  would  forbear  resorting  to  coercive  measures  for  a  short 
time.  And  the  court  are  of  opinion  that,  when  the  indorser,  at  or  shortly  iie*bre  tho 
time  when   the  note  becomes  due,  says  to  tin'  holder  that  an  arrangcinciit  for  its  \  ay- 


CH.  Xill.]  EXCUSES   FOR   WANT   OF   NOTICE.  589 

indorsement ;  (n)  an  agreement  by  the  indorser  with  the  maker, 
to  pay  the  note  and  to  take  it  back  into  his  own  liands  ;  (o)  an 
agreement  by  tlic  indorser  to  pay,  if  the  note  could  not  l)e  col- 
lected oi"  the  maker  by  due  course  of  law  ;(/>')  a  verbal  agree- 
ment between  the  indorser  and  the  indorsee,  by  which  the  latter 
agreed  to  inform  the  maker  of  the  indorsement,  and  to  wait  six 
months  after  maturity  before  making  cost  upon  the  note ;  (q)  a 
refusal  by  the  drawer  to  give  his  address,  with  a  declaration  to 
the  holder  that  the  acceptor  would  not  pay,  coupled  with  a  prom 
ise  to  call  in  a  few  days  to  inquire  whetlier  the  bill  liad  been  paid 
or  not ;  (/■)  a  declaration  by  the  drawer  of  a  check,  who  was  the 
paying  teller  of  the  bank  on  which  it  was  drawn,  three  days 
before  maturity,  that  the  check  would  not  be  paid  ;  [s)  part  pay- 
ment of  a  check  before  maturity,  as  it  would  seem ;  (t)  a  decla- 
ration by  the  indorser  of  a  check  to  the  holder,  that  the  maker 
cannot  pay,  that  the  latter  has  made  an  assignment,  and  has 
therein  preferred  him ;  {u)  all  have  respectively  been  considered 
as  a  waiver  of  demand  and  notice. 


ment  is  about  being  made,  and  in  direct  terms  or  by  reasonable  implication  requests 
the  holder  to  wait  and  give  time,  it  amounts  to  an  assurance  that  the  note  will  be  paid, 
that  the  promisor  or  indorser  will  pay  it,  and  is  a  waiver  of  demand  and  notice.  It 
tends  to  put  the  holder  off  his  guard,  and  induces  him  to  forego  making  a  demand  at 
the  proper  time  and  place ;  and  it  would  be  contrary  to  good  faith  to  set  up  such  want 
of  demand  and  notice,  caused  perhaps  by  such  forbearance,  as  a  ground  of  defence." 
But  in  Sussex  Bank  v.  Baldwin,  2  Harrison,  487, 495,  the  defendant  sent  a  letter  to  the 
cashier  of  the  bank  a  week  or  two  before  maturity,  stating  that  the  maker  could  not 
pay,  and  requesting  that  the  note  might  be  renewed.  The  defendant  was  discharged 
for  want  of  proof  of  notice. 

(n)  Taunton  Bank  v.  Richardson,  5  Pick.  436.  Held  a  waiver  of  demand  and  no- 
tice, or  at  least  evidence  from  which  a  jury  might  infer  such  waiver. 

(o)  Marshall  v.  Mitchell,  35  Maine,  221.     Held  a  waiver  of  demand  and  notice. 

(p)  Backus  V.  Shipherd,  1 1  Wend.  629. 

(q)  Drinkwater  v.  Tebbetts,  17  Maine,  16,  where  notice  was  waived. 

(r)  Phipson  v.  Kneller,  1  Stark.  116,  4  Camp.  285,  where  notice  was  waived.  Lord 
Ellenhorough  said :  "  No  legal  proposition  can  be  more  clear  than  that,  where  a  party 
says,  '  My  residence  is  immaterial,  I  will  inquire  whether  the  bill  is  paid,'  he  thereby 
takes  upon  himself  the  onus  of  making  inquiry,  and  dispenses  with  notice." 

(s)  Minturn  v.  Fisher,  7  Calif.  573. 

{t)  In  Levy  v.  Peters,  9  S.  &  R.  125,  128,  TiJghman,  C.  J.  said:  "If  one  draws  a 
Theck  on  a  bank,  payable  some  time  after  date,  and  before  the  time  of  payment  the 
drawer  pays  part,  I  should  suppose  it  must  be  the  intent  of  the  parties  that  the  check 
should  not  be  presented.  I  doubt  whether  the  bank  would  pay  the  balance  in  such 
case,  without  a  special  order  from  the  drawer,  or  some  written  exi)Iaiuition.  On  this 
point,  however,  I  give  no  opinion,  as  the  case  docs  not  require  it'" 

(u)   Taylor  v.  French,  4  E.  D.  Smith,  458. 

VOL..   I.  50 


590  NOTES   AND   BILLS.  [CH.  XIIL 

Whoitlicr  acts  other  than  a  promise  to  pay  will  constitute  a 
waiver  or  not  has  been  also  somewhat  discussed.  Thus,  where 
an  indorser,  after  maturity,  agreed  with  the  maker  to  take  up 
the  note,  to  give  back  to  him  the  property  for  which  the  note 
was  given,  and  to  return  the  note  without  further  consideration, 
this  was  held  to  constitute  a  waiver  of  demand  and  notice. (v) 
A  confession  of  judgment  has  also  been  held  admissible  evidence 
of  waiver,  but  not  conclusive. (?/;)  Where  the  drawer  of  a  bill 
which  had  been  duly  presented,  but  was  unpaid,  gave  the  holder 
his  own  note  for  the  amount,  it  was  held  that  it  was  no  de- 
fence to  the  note  to  prove  laches  in  giving  notice  of  non- 
payment of  the  bill ;  (x)  but  the  giving  of  a  bond  would  seem 
to  have  been  held  to  be  only  prima  facie  evidence  of  waiver. (?/) 
So  where  the  drawer  himself  undertakes  to  present  a  bill  after 
maturity, (z)  although  inquiries  and  attempts  by  an  indorser  to 
induce  the  maker  to  pay  have  been  held  not  to  be  a  waiver. (a) 
The  fact  that  an  indorser  appeared  at  the  meeting  of  the  cred- 
itors, and  assumed  the  character  of  a  creditor  for  a  large  sum, 


(v)  Andrews  v.  Boyd,  3  Met.  434,  where  the  defendant  had  sold  the  maker  a  vessel 
for  $  2,800,  of  which  S  800  was  paid  in  cash,  and  the  remainder  by  two  notes  for 
$1,000  each.  The  defemlant  offered  evidence  to  show  that  the  vessel,  from  fall  in 
prices,  and  from  wear  and  tear,  was  not  worth  the  amount  of  the  notes.  Held  imma- 
terial. S/iaiv,  C.  J.  said  :  "  When  the  indorser  took  back  the  property  whicii  was  the 
original  consideration  for  the  notes,  and  agreed  in  express  terms  with  tlie  promisors 
that  he  would  pay  and  take  up  the  note  now  in  suit,  and  deliver  it  to  them  without 
further  consideration,  and  this  after  the  note  became  due,  and  after  he  must  have 
known  whether  he  had  received  due  notice  of  its  non-payment  or  not,  we  cannot 
perceive  why  this  is  not  evidence  from  which  a  jury  might  properly  infer  that  he  had 
received  due  notice  of  the  non-payment  of  the  note  from  the  holder.  But  if  this  were  not 
clear,  we  are  of  opinion  that,  when  the  indorser  took  the  ])roperty  of  the  promisors  into 
his  own  hands,  being  either  of  sufficient  amount  and  value  to  pay  the  note,  or  perhaps 
being  all  they  could  give  him  ;  and  when,  with  such  funds  as  they  did  furnish  him 
with,  he  agreed  absolutely  to  pay  and  take  up  the  note  on  which  he  stood  as  indorser, 
witliout  further  consideration  from  them,  it  was  a  waiver  of  notice  on  his  part " 

(w)  See  Richter  v.  Selin,  8  S.  &.  II.  42."),  where  Duncan,  J.  said  :  "  The  confession 
of  judgment  may  be  evidence  of  an  acknowledgment  of  liability,  but  is  not  conclusive 
evidence.  It  is  not  a  legal  presumption.  It  is  capable  of  being  explained  and  re- 
pelled by  the  circumstances  under  which  it  w.as  given.  But  if  the  defendant  confessed 
the  judgment  by  any  false  suggestion  of  the  drawers,  and  on  the  faith  of  a  valid  sccuiity 
to  indemnify  him,  whicli  security  was  found  to  be  immediately  wortiiless,  ....  all  this 
would  be  evidence  to  repel  tlie  presumption  arising  from  the  judgment  and  security." 

(x)  Leonard  v.  Hastings,  9  Calif.  236. 

(y)  Ralston  i;.  Bullitts,  3  Bibb,  261  ;  Mills  v.  Rouse,  2  Littcll,  203. 

(z)   See  Cram  v.  Sherburne,  14  Maine,  48. 

(rt)   Hussey  v.  Freeman,  10  Mass.  84. 


CH.  Xni.]  EXCUSES   FOR   WANT   OF   NOTICE.  591 

including  the  note  sued  on,  has  been  held  no  waiver  of  demand 
and  notice  ;  (b)  but  we  should  say  that  it  might  be  regarded  as 
evidence  of  such  waiver,  (c) 

Whether  particular  conversations  amount  to  a  waiver  or  not 
has  been  held  to  be  a  question  of  fact  for  the  jury,  and  not  one 
of  law  for  the  court, (^)  but  it  has  also  been  said  that  questions 


(6)  Miranda  v.  City  Bank,  6  La.  740. 

(c)  See  Martin  v.  Ingersoll,  8  Pick.  1 . 

(d)  Union  Bank  v.  Magruder,  7  Pet.  287,  where  Story,  J.  said  :  "  Tlie  plaintiffs,  on 
the  foregoing  evidence,  prayed  the  court  to  instruct  the  jury  as  follows  :  '  That,  if  the 
jury  believe  the  defendant  held  the  above  conversations  as  stated  by  the  witnesses, 
such  conversations  amount  to  a  waiver  of  the  objection  of  the  want  of  demand  and 
notice ;  and  the  defendant  is  liable  on  the  note,  if  the  jury  should  believe  that  the 
defendant  made  the  acknowledgments  and  declarations  stated  in  the  conversations 
in  reference  to  the  claim  of  the  bank  upon  him  as  indorser  of  the  note.'  Which 
the  court  refused.  And  the  plaintiffs  then  prayed  the  court  to  instruct  the  jury  as 
follows:  'That,  if  the  jury  believe,  from  the  evidence  aforesaid,  that  the  defendant, 
after  knowing  of  his  discharge  from  liability  as  indorser  of  the  said  note,  by  the  neglect 
to  demand  and  give  notice,  said  '•  that  he  meant  to  pay  the  note,  but  should  take  his 
own  time  for  it,  and  would  not  put  himself  in  the  power  of  the  bank  "  ;  and  that  the  bank 
forbore  bringing  suit,  from  the  time  of  said  conversation,  about  three  or  four  months 
after  the  note  fell  due,  until  the  date  of  the  writ  issued  in  this  cause,  then  the  plaintiffs 
are  entitled  to  recover  on  the  second  count  of  the  declaration.'     Which,  also,  the  court 

refused  to  give The  question  is,  whether  these  instructions,  thus  propounded, 

were  rightly  refused  by  the  court.  And  we  are  of  opinion  that  they  were.  The  first 
requests  the  court  to  instruct  the  jury  upon  a  mere  matter  of  Aict,  deducible  from  the 
evidence,  and  which  it  was  the  proper  province  of  the  jury  to  decide.  It  asks  the  court 
to  declare  that  the  conversations  stated,  sufficiently  loose  and  indeterminate  in  them- 
selves, amounted  to  a  waiver  of  the  objection  of  the  want  of  demand  and  notice. 
Whether  these  did  amount  to  such  a  waiver  was  not  matter  of  law,  but  of  fact;  and 
the  sufficiency  of  the  proof  for  this  purpose  was  for  the  consideration  of  the  jury.  The 
second  instruction  is  open  to  the  same  objection.  It  calls  upon  the  court  to  decide 
upon  the  sufficiency  of  the  proof;  to  establish  that  there  was  a  forbearance  by  the 
plaintiffs  to  sue  the  defendant  upon  the  note,  and  of  the  promise  of  the  defendant,  in 
consideration  of  the  forbearance,  to  pay  the  same.  That  was  the  very  matter  upon 
which  the  jury  were  to  respond,  as  matter  of  fact.  It  is  also  open  to  the  additional 
objection,  that  it  asks  the  court  to  decide  this  point,  not  upon  the  whole  evidence,  but 
upon  a  single  sentence  of  the  conversations  stated,  without  the  slightest  reference  to 
the  manner  in  which  the  meaning  and  effect  of  that  sentence  was,  or  might  be,  con- 
trolled by  the  other  points  of  the  conversations,  or  the  attendant  circumstances.  In 
either  view,  it  was  properly  refused."  So  Carmichael  v.  Bank  of  Pennsylvania,  4 
How.  Miss.  567,  where  the  court  refused  to  charge,  that  the  declarations  of  the  defend- 
ant, a  second  indorser,  that  the  first  indorser  "  considered  that  they  were  exonerated, 
that  he  himself  thought  differently,  there  was  no  use  in  resisting,  that  the  bills  must 
be  provided  for,  and  that  the  first  indorser  stood  between  him  and  danger,  were  not  an 
absolute  promise,  and  did  not  amount  to  a  waiver  in  law."  Held,  that  the  refusal  was 
correct.  Lary  v.  Young,  8  Eng.  Ark.  401.  See  Curtiss  v.  Martin,  20  111.  557  ;  Whita- 
ker  V.  Morris,  Esp.  N.  P   58. 


592  NOTES   AND   BILLS.  [CH.  XIH. 

of  waiver  are  matters  of  law.(e)  We  should  say  that  the  ques- 
tion, whether  a  promise  was  really  made,  and  what  it  is,  taken  in 
connection  with  all  the  facts  of  the  case,  was  a  matter  of  fact,  as 
well  as  whether  the  promise  was  made  with  a  knowledge  of  all 
the  material  facts.  But  what  construction  is  to  be  put  upon  the 
promise  and  the  knowledge,  when  proved,  must  be  a  question 
of  law. 

3.    Where  the  Waiver  occurs  on  the  Day  of  Maturity. 

It  will  be  seen  that  the  general  principle  upon  which  most  of 
these  cases  on  the  subject  of  waiver  before  maturity  depend  is, 
that  the  indorser  has,  by  act  or  word,  done  something  calculated 
to  mislead  the  holder,  and  induce  him  to  forego  taking  the  usual 
steps  to  charge  the  indorser.  The  same  principle  would  apply, 
in  our  opinion,  when  the  declarations  are  made  on  the  day  of 
maturity.  Thus,  where  the  holder  asked  the  indorser,  on  the 
day  the  note  matured,  if  it  would  be  best  to  call  upon  the 
makers,  and  the  indorser  replied  that  it  would  be  of  no  use,  a 
regular  demand  and  notice  were  considered  as  waived.  (/)  So  a 
verbal  request  by  the  indorser  to  the  holder  not  to  protest  the 
note  was  held  to  be  a  waiver  of  demand. (^) 


(e)  In  Creamer  v.  Perry,  17  Pick.  332,  Shaw,  C.  J.  said:  ''  Thougii  questions  of  duo 
diligence  and  of  waiver  were  originally  questions  of  fact,  yet  liaving  been  reduced  to  a 
good  degree  of  certainty  by  mercantile  usage,  and  a  long  course  of  judicial  decisions, 
they  assume  the  character  of  questions  of  law  ;  and  it  is  highly  im))ortant  that  they 
should  be  so  deemed  and  api^lied,  in  order  tiiat  rules  affecting  so  extensive  and  impor- 
tant a  department  in  the  transactions  of  a  mercantile  community  may  be  certain,  prac- 
tical, and  uniform,  as  well  as  reasonable,  equitable,  and  intelligible." 

(f)  See  Barker  v.  Parker,  6  Pick.  80.  There  were  other  circumstances  in  the  case, 
but  the  court  seems  to  have  considered  the  conversation  enough  to  amount  to  a  waiver. 
In  Burgh  v.  Legge,  5  M.  &  W.  418,  an  action  against  the  indorser  of  two  bills  due  on 
April  4th  and  5tli,  the  defendant  called  on  the  plaintiff  on  April  4th,  and  said  that  ono 
of  the  bills  would  not  be  paid,  as  the  acceptor  was  bankrupt ;  that  the  other  bill  would 
not  be  paid,  as  he  held  some  pictures  as  security,  and  had  not  been  able  to  sell  them  ; 
and  tliat  the  acceptor  had  no  other  means  of  raising  the  money.  He  also  said  that  it 
was  not  worth  while  to  trouble  him  with  a  twopenny-post  letter,  to  give  notice,  as  it 
was  not  worth  the  money,  and  tliat  he  would  bring  the  plaintiff  some  money  the  next 
week,  in  part  payment  of  the  bills.  Held  no  evidence  to  support  an  allegation  of  duo 
notice,  but  that  it  probably  would  support  an  allegation  of  disi)cnsation  of  notice. 

{(J)  Scott  V.  Greer,  10  Penn.  State,  103.  But  in  Prideau.x  v.  Collier,  2  Stark.  57,  the 
drawee  told  the  holder  the  day  before  maturity  that  he  had  no  effects  of  the  drawer  in 
his  hands,  but  would  probably  be  supplied  before  the  next  day.  On  maturity  tlio 
drawer  told  the  holder  that  he  hoped  the  bill  would  be  jjaid  ;  that  he  would  se*>  what  ho 
could  do ;  would  endeavor  to  i)rovide  effects  ;  and  would  see  him  again.    'I'br  idll  was 


CH.  Xm.]  EXCUSES   FOR   WANT   OF   NOTICE.  59S 

With  reference  to  the  question  whether  a  particular  conversa- 
tion amounts  to  a  waiver,  no  general  rule  can  be  laid  down, 
except  that  the  words  used  must  be  such  as  fairly  to  lead  a  rea- 
sonable man  to  suppose  that  the  indorser  did  not  wish  that  the 
regular  course  in  making  a  demand  and  giving  notice  should  be 
[)ursued  ;  or  such  as  would  be  calculated  to  prevent  him  from  so 
doing.  But,  on  the  other  hand,  the  language  must  not  be  so 
vaiiue,  uncertain,  and  loose  as  to  raise  a  reasonable  doubt  as  to 
what  was  intended. (/i)     It  will  be  seen  that  there  is  a  marked 


presented  the  day  after  maturity,  and  the  drawer  was  discharged.  Lord  Ellenhorough 
said :  "  The  evidence  shows  that  it  was  not  likely  that  the  drawees  would  accept  tlie 
bill,  but  it  was  possible  that  they  might  change  their  minds."  It  would  seem  some- 
what ditlicult  to  reconcile  this  case  with  that  cited  supra,  p  589,  note  r,  and  there 
is  certainly  ground  to  contend  that  there  was  evidence  from  which  a  jury  might  infer 
a  waiver,  on  the  ground  that  the  drawer  had,  to  use  the  language  of  the  same  judge 
in  that  case,  "  taken  upon  himself  the  onus  of  making  in(}uiry."  So  in  Cayuga  Co. 
Bank  ».  Dill,  5  Hill,  404,  the  indorser  called  at  the  bank  on  the  day  of  maturity,  and 
after  observing  that  the  note  had  come  round,  asked  if  it  could  not  be  renewed  on  pay- 
ment of  $100,  and  discount.  He  said  that  the  maker  was  absent,  and  that  the  noto 
would  have  to  lie  over  until  his  return.  The  cashier  expressed  a  willingness  to  renew 
the  note  upon  the  terms  proposed,  if  the  defendant  could  do  no  better.  On  leaving  the 
bank,  the  defendant  told  one  of  the  directors  the  conversation  witii  the  cashier,  adding 
that  the  $  100  dollars  should  be  paid  and  the  note  renewed  on  the  maker's  re- 
turn. The  director  assented  to  the  renewal,  and  told  the  cashier  to  let  the  noto 
lie.  By  mistake  of  one  of  the  clerks,  the  note  was  not  protested  until  three  days 
afterwards.  On  the  day  of  protest  the  indorser  called  at  the  bank  and  inquired  why 
the  note  had  not  been  protested.  He  was  told  that  it  would  be  protested  in  the 
afternoon,  whereupon  he  replied  that  it  was  too  late,  and  refused  to  indorse  a  new  note. 
No  notice  was  sent.  The  judge  at  Nisi  Prius  refused  to  nonsuit  the  plaintiff,  at  the  de- 
fendant's request,  and  charged  that,  under  the  circumstances,  the  plaintiff  was  entitled  to  a 
verdict.  The  verdict  was  set  aside  and  a  new  trial  granted,  Co«;«j,  J.,  dissenting.  Ntlson, 
C.  J.  founded  his  opinion  on  the  ground  that  the  omission  to  protest  and  to  give  notice 
arose,  not  from  the  conversations,  but  from  the  negligence  of  the  clerk ;  and  that  the 
words  used  were  too  loose  and  uncertain  to  constitute  a  waiver.  Cowen,  J.  was  of  opinion 
that  the  conversation  was  fully  sufficient  to  amount  to  a  waiver,  that  it  was  um-easona- 
ble  for  the  defendant,  under  the  circumstances,  to  object  to  want  of  demand  and  notice. 
As  to  the  conversation,  the  opinion  of  Cowen,  J.  is  clearly  the  better.  And  as  to  the 
effect  of  the  want  of  protest  being  caused  by  the  clerk's  negligence,  it  may  be  observed, 
that  this  appears  contrary  to  the  case  of  Boyd  v.  Cleveland,  4  Pick.  .52.5,  supra,  p.  .585, 
note  j,  where  notice  was  held  waived,  although  the  holder  made  an  unsuccessful  attempt 
to  notify  the  indorser.  It  may  also  be  answered,  that  the  question  is  not  whether  the 
holder  was  actually  misled,  but  whether,  under  the  circumstances,  a  reasoiuibly  prudent 
man  might  not  consider  that  the  indorser  had  waived  the  necessity  of  notice.  So  also 
if  no  protest  at  all  had  been  made,  or  no  attempt  to  protest,  the  indoiscr  would  prob- 
ably have  been  held.  It  might  be  difficult,  then,  to  see  why  an  attempt  to  do  that 
which  a  party  was  not  bound  to  do  should  deprive  him  of  a  right  to  which  he  would 
be  entitled  in  case  no  such  attempt  had  been  made. 

(h)  See  Cayuga  Co.  Bank  v.  Dill,  5  Hill,  404 ;  Prideaux  v.  Collier,  2  Stark.  57..  In 

Vol..  I.— 2  N  50  * 


594  NOTES   AND   BILLS.  [CH.  XHI. 

difference  between  the  waiver  before  and  after  maturity,  as  re- 
gards the  question  what  words  will  amount  to  a  waiver,  for  the 
obvious  reason  that,  in  the  former  case,  the  holder  may  be  mis- 
led, and  prevented  from  presenting  and  giving  notice,  while,  in 
the  latter,  no  such  circumstance  can  occur,  (t) 

4.   Wliere  the  Waiver  occurs  after  Maturity. 

The  expression,  "  waiver  of  demand  and  notice  after  matu- 
rity," though  often  used,  is  somewhat  inaccurate.  Properly 
speaking,  demand  and  notice  can  only  be  waived  before  matu- 
rity ;  but  the  party  may,  by  words  or  acts  subsequent  to  that 
time,  relieve  the  plaintiff  from  the  necessity  of  proving  demand 
and  notice,  or  render  the  fact  that  no  demand  was  made  or  no- 
tice given  entirely  immaterial. (y)  The  subject  of  taking  secu- 
rity before  maturity,  with  reference  to  the  bearing  upon  waiver, 
has  already  been  discussed, (A;)  and  it  has  been  seen  that  the 
authorities  are  somewhat  in  conflict.     But  it  seems  to  be  well 

Gregory  v.  Allen,  Mart.  &  Y.  74,  the  note  was  indorsed  when  overdue.  By  agreement 
between  the  indorser  and  indorsee,  the  latter  was  not  to  make  any  demand  until  the 
following  May,  when  the  maker  was  expected  to  return.  The  latter  returned  in  July, 
after  the  commencement  of  the  suit.  No  demand  or  notice  was  proved.  A  witness 
testified,  that,  a  few  weeks  before  the  suit,  he  was  present  at  a  conversation  between  the 
plaintiff  and  defendant ;  that  he  told  them  that  he  expected  to  go  to  the  place  where 
the  maker  then  was  in  about  a  week.  They  agreed  to  send  the  note  by  him  for  col- 
lection. Plaintiff  then  asked  the  defendant  if  he  would  be  accountable  for  the  amount 
of  the  note  if  he,  the  plaintifl^',  would  wait  until  the  witness  returned.  The  defendant 
replied,  that  he  felt  himself  bound  for  tiie  note  as  they  had  agreed.  The  understanding 
of  the  witness  was,  that,  if  he  carried  the  note  and  failed  to  get  the  money,  tlie  defend- 
ant was  to  be  accountable  for  it,  not  otherwise.  The  witness  did  not  take  the  trij),  and 
the  note  was  never  sent,  so  far  as  he  knew.  A  verdict  for  the  plaintiff  was  set  aside,  as 
against  evidence,  or  unsupported  by  any.  CV«W,  J.  said :  "The  well-sctticd  rule  of 
law  Is,  that,  to  show  a  waiver  of  demand  and  notice,  there  must  be  dear  and  unequivo- 
cal evidence."  That  is  perhaps  stating  the  rule  too  strictly,  as  regards  a  waiver  be- 
fore maturity.  An  agreement  by  the  drawer  and  indorser  of  a  bill  with  the  bolder, 
before  the  bill  became  due,  that  the  holder  should  take  any  security,  or  make  any 
arrangement  he  thought  proper  to  secure  payment,  without  affecting  their  liabilities, 
does  not  dispense  with  the  necessity  of  demand  and  notice.  Bank  v.  S]H'11,  2  Hill, 
S.  Car.  .-366. 

(i)  Story  on  Prom.  Notes,  §  280  ;  Scott,  J.,  Lary  v.  Young,  8  Kng.  Ark.  401. 

( /)  In  Iloadley  i;.  Bli,ss,  9  Ga.  303,  Nishct,  J.  said:  "The  presiding  judge  held  that 
the  indorser  could  waive  demand  and  notice  before  the  note  full  due,  and  it  is  cxcc[)tcd 
that  this  was  an  error.  He  could  waive  demand  and  notice  at  no  other  time.  It  is 
true  that  he  may,  after  it  is  due,  waive  his  right  to  except  to  his  liability,  that  is,  waive 
proof  of  demand  and  notice,  and  the  presiding  judge  held  nothing  to  the  contrary  of 
this." 

{k)  Supra,  j)i).  576  -  592. 


CH   XIII.]  EXCUSES  FOR  WANT   OF   NOTICE.  595 

settled,  that  taking  security  after  maturity  is  no  waiver,  because 
the  reasons  for  considering  security  as  a  waiver  do  not  apply. (Z) 

Although  there  is  great  fluctuation  and  uncertainty  in  the 
cases  connected  with  this  subject,  yet  the  general  principle 
seems  now  to  be  settled,  in  this  country,  at  least,  and  by  the  ear- 
lier decisions  in  England,  that,  where  no  demand  has  been  made 
or  notice  given,  a  promise  to  pay,  after  maturity,  made  with  full 
knowledge  of  laches,  is  binding  on  the  party  promising ;  and 
removes  entirely  the  effect  of  any  negligence  in  making  the 
demand  or  in  giving  the  notice. (m)     The  cases,  however,  are 


(I)  Tower  i;.  Durell,  9  Mass.  332,  where  the  indorser  had  taken  an  assignment  from 
the  maker,  after  maturity,  of  a  suit  then  pending,  and  had  also  received  part  of  the 
rent  of  a  house.  Held  no  waiver  of  demand.  Creamer  v.  Perry,  17  Pick.  332.  In  this 
case,  demand  on  the  maker  was  made  the  day  after  maturity,  and  the  indorser  was 
notified  a  few  days  after.  There  were  two  assignments,  one  before  and  the  other  after 
maturity.  The  case  does  not  disclose  what  the  terms  of  the  second  assignment  were. 
Shaw,  C.  J.  said :  "The  second  assignment  does  not  affect  the  question;  it  does  not 
appear  to  have  been  made  till  several  days  after  the  note  became  due."  Otsego  Co. 
Bank  v.  Warren,  18  Barb.  290.  In  this  case,  the  plaintiff  offered  to  prove  that  the 
defendant,  the  second  indorser  of  a  bill,  took  an  assignment  from  the  first  indorser  to 
secure  the  former  for  all  his  liabilities  for  the  drawers,  and  that  the  property  assigned  was 
sufficient  to  cover  the  whole  liability,  including  the  draft  in  suit.  Held,  that  the  evi- 
dence was  properly  excluded.  Bacon,  J.  said  :  "  If  there  has  been  no  due  presentment 
or  notice  of  dishonor,  and  the  indorser,  after  the  maturity  of  the  note,  even  supposing 
himself  liable  to  pay  the  same,  takes  security  from  the  maker,  that  will  not  amount  to 
a  waiver  of  the  objection  of  want  of  due  presentment  or  notice  ;  since  it  cannot  justly 
be  inferred  that  he  intends  at  all  events  to  make  himself  liable  for  the  payment  of  the 
note,  but  he  takes  the  security  merely  contingently,  in  case  of  his  ultimate  liability." 
See  Burrows  v.  Hannegan,  1  McLean,  309  ;  Richter  v.  Selin,  8  S.  &  R.  425,  439.  An 
agreement  subsequent  to  maturity,  to  put  into  the  hands  of  the  holder  certain  mer- 
chandise, is  no  waiver.  Carter  v.  Burley,  9  N.  H.  558.  But  it  was  held  equivalent  to 
a  promise  to  pay,  and  as  the  indorser  must  have  known  whether  he  had  received  notice 
or  not,  such  an  agreement  was  held  sufficient  evidence  of  waiver  in  Debuys  v.  Mol- 
lere,  15  Mart.  La.  318. 

(m)  Sigerson  v.  Mathews,  20  How.  496,  where  the  judge,  at  Nisi  Prius,  charged  the 
jury,  that  if,  "  after  the  maturity  of  the  note,  the  defendant  promised  the  plaintiflT  or 
his  agent  to  pay  the  same,  having  at  the  time  of  making  said  promise  knowledge  of  the 
fact  that  the  note  had  not  been  presented  for  payment,  and  that  no  demand  had  been 
made  therefor,  or  notice  of  non-payment  given,  the  defendant  cannot  now  set  up,  as  a 
defence  to  said  note,  a  want  of  such  demand  or  notice."  Held  correct.  See  Reynolds 
V.  Douglass,  12  Pet.  497,  505  ;  Thornton  v.  Wynn,  12  Wheat.  183  ;  Read  v.  Wilkin- 
son, 2  Wash.  C.  C.  514;  Martin  v.  Winslow,  2  Mason,  241  ;  Creamer  v.  Perry,  17 
Pick.  332  ;  Hopkins  v.  Liswell,  12  Mass.  52  ;  Byram  v.  Hunter,  36  Maine,  217  ;  Hunt 
V.  Wadleigh,  26  id.  271  ;  Davis  v.  Gowen,  17  id.  387  ;  Cram  v.  Sherburne,  14  id.  48; 
Groton  v.  Dallheim,  6  Greenl.  476  ;  Edwards  v.  Tandy,  36  N.  H.  540 ;  Rogers  v. 
Hackett,  1  Foster,  100 ;  Parker,  C  J.,  Merrimack  Co.  Bank  v.  Brown,  12  N.  H. 
320,  325     Woodman  v.  Eastman,  10  id.  359;  Whitney  i'.  Abbot,  5  id.  378  ;  Otis  v. 


596  NOTES   AND   BILLS.  [CH.  Xm. 

t  somewhat  strict  in  their  requirements,  as  they  should  be.  In 
the  first  place,  there  should  be  clear  and  distinct  evidence  of  the 
promise. (w)  The  following  are  instances  m  which  it  was  held 
that  the  promise  was  sufficiently  made  out.  Where  the  indorser 
of  a  note  said  to  the  plaintiff's  agent,  on  being  asked  what  to  do, 
that  in  a  few  days  he  would  see  the  agent  and  arrange  the 
note  ;  (o)  a  declaration  by  the  indorser,  that  when  he  returned  he 
would  set  matters  to  rights  ;  (p)  an  acknowledgment  of  the  debt 
by  the  drawer,  with  a  promise  to  send  funds  with  which  to  take 

Hussey,  3  id.  346  ;  Hosmer,  C.  J.,  Breed  v.  Hillhouse,  7  Conn.  523,  528 ;  Brooklyn 
Bank  v.  Waring,  2  Sandf.  Ch.  1  ;  Bruce  r.  Lytle,  13  Barb.  163;  Tebbetts  v.  Dowd, 
23  Wend.  379  ;  Leonard  v.  Gary,  10  id.  504  ;  Jones  v.  Savage,  6  id.  658 ;  Trimble  v. 
Thorne,  16  Johns.  152  ;  Griffin  v.  Goff,  12  Johns.  423  ;  Miller  v.  Hackley,  5  id.  375  ; 
Duryee  r.  Dennison,  id.  248  ;  Strong,  J.,  Sherer  v.  Easton  Bank,  33  Penn.  State,  134, 
141  ;  Donaldson  v.  Means,  4  Dall.  109  ;  Sussex  Bank  ».  Baldwin,  2  Harrison,  487; 
U.  S.  Bank  v.  Southard,  id.  473;  Barkalow  v.  Johnson,  1  id.  397  ;  Beck  v.  Thomp- 
son, 4  Harris  &  J.  531  ;  Higgins  i\  Morrison,  4  Dana,  100 ;  Pate  v.  M'Clure,  4  Band 
Va.  164;  Walker  v.  Laverty,  6  Munf.  487;  Moore  v.  Tucker,  3  Ired.  347;  Gardi 
ner  v.  Jones,  2  Murph.  429  ;  Johnson.  J.,  Allwood  v.  Haseldon,  2  Bailey,  457  ;  Hall  v. 
Freeman,  2  Nott  &  McC.  479  ;  Spurlock  i'.  Union  Bank,  4  Humph.  336  ;  Durham  v. 
Price,  5  Yerg.  300  ;  Sherrod  v.  Rhodes,  5  Ala.  683 ;  Kennon  v.  M'Rea,  7  Port.  Ala. 
175,  where  it  was  held  that  the  promise  might  be  made  after  suit  brought ;  Harvey  v. 
Troupe,  23  Missis.  538;  Oglesby  v.  Steamboat,  10  La.  Ann.  117,  where  the  promise 
was  made  after  the  commencement  of  the  suit ;  New  Orleans  Bank  v.  Harper,  12  Rob. 
La.  231  ;  Lacoste  v.  Harper,  3  La.  Ann.  385  ;  Glenn  r.  Thistle,  1  Rob.  La  572  ;  Hart 
V.  Long,  id.  83,  where  the  plaintiff  had  been  nonsuited  for  want  of  proof  of  demand  at 
the  place  where  the  note  was  payable,  and  the  indorser  promised  to  pay  while  a  motion 
for  a  new  trial  was  pending,  the  plaintiff's  attorney  having  ex])laincd  to  him  the  reason 
of  the  nonsuit;  Union  Bank  v.  Grimshaw,  15  La.  321  ;  Bank  of  U.  S.  v.  Ellis,  13  id. 
368  ;  Williams  v.  Robinson,  id.  419  ;  Debuys  v.  Moliere,  15  Mart.  La.  318  ;  Walker  v. 
Walker,  2  Eng.  Ark.  542  ;  Dorsey  v.  Watson,  14  Misso.  59  ;  Wilson  v.  Huston,  13  id. 
146  ;  Prattc  v.  Hanly,  1  id.  35  ;  Whitaker  v.  Morrison,  1  Fla  25  ;  Sharkey,  C.  J.,  Rob- 
bins  V.  Pinckard,  5  Smedes  &  M.  51,  70.  The  following  English  cases  .arc  authorities 
to  the  same  point.  Whitaker  v.  Morris,  Esp.  N.  P.  58  ;  Anson  v.  Bailey,  Bull.  N.  P. 
276  ;  Wilkes  v.  Jacks,  Peake,  202  ;  Rogers  v.  Stevens,  2  T.  R.  713  ;  Hopes  i;.  Alder,  6 
East,  16,  note ;  Lundie  v.  Robertson,  7  East,  231,  3  J.  P.  Smitli,  225  ;  Haddock  r.  Bury, 
7  East,  236,  note;  Stevens  v.  Lynch,  12  id.  38,  2  Camp.  332;  Biti/lri/,  ,1.,  Brett  v. 
Levett,  13  East,  213  ;  Potter  v.  Rayworth,  id.  417  ;  Hopley  v.  Dufresne,  15  East,  275  ; 
Taylor  v.  Jones,  2  Camp.  105  ;  Patter.son  v.  Becher,  6  J.  B.  Moore,  319  ;  Vitw/lutn,  B., 
Pickin  V.  Graham,  1  Cromp.  &  M.  725,  729  ;  Fletcher  t;.  Froggatt,  2  (^ar.  &  P.  569  ; 
Houlditch  V.  Cauty,  4  Bing.  N.  C.  411  ;  Mills  v.  Gibson,  16  Law  J.,  C  P.  249. 

(h)  Mansfield,  C  J.,  Borradaile  v.  Lowe,  4  Taunt.  93  ;  I'mit/hun,  B.,  Pickin  v.  Gra- 
ham, 1  Cromp.  &  M.  725,  728;  Spencer,  J.,  Griffin  v.  Goff,  12  john.s.  42T  ;  Duncan,  J., 
Richter  v.  Selin,  8  S.  &  li.  425,  438.     See  Whitaker  v.  Morrison,  1  Fla.  25. 

(o)  Sigerson  v.  Mathews,  20  How.  496.  AfcLcan,  J.  said  :  "  This  was  an  uncondi- 
tional [)r()misc  to  pay  the  note,  which  no  one  could  misunderstand,  ».nd  wliich  the 
defendant  could  not  repudiate  at  any  s»l)sequent  period." 

(/))  Anson  v.  Bailey,  Bull.  N.  P.  276. 


CH.  Xin.]  EXCUSES   FOR   WANT   OF  NOTICE.  597 

up  tlio  bill ;  (q)  a  request  by  the  indorser,  when  called  on  for 
payment,  for  delay,  with  a  promise  to  pay  in  a  few  days ;  (r)  a 
promise  to  the  holder,  that  the  drawer  would  arrange  with  the 
drawee,  so  that  the  draft  should  be  paid ;  (s)  a  promise  by  the 
drawer,  that  he  would  see  the  bill  paid  ;  (t)  a  request  by  the  in 
dorser  to  the  holder  to  sue  the  maker,  with  a  promise  to  pay,  if 
the  note  could  not  be  collected  of  the  latter  ;  (u)  a  promise  by 
the  indorser  to  pay  the  note  as  soon  as  he  could,  with  a  state- 
ment that  he  doubted  whether  he  should  be  able  to  do  it  under 
eight  months,  but  that  he  should  have  the  amount  by  that 
time  ;  (r)  an  agreement  of  the  indorser  of  a  note  to  consider  tlic 
demand  as  made  in  due  time,  and  liimself  liable  as  indorser ;  (lo) 
a  promise  to  pay  when  it  shoidd  be  in  tlie  defendant's  power ;  (x) 
when  the  indorser  wished  for  time,  and  agreed  to  give  security 
on  the  plaintiff's  request  therefor,  and  a  subsequent  refusal  to 
comply  with  the  agreement ;  (y)  a  promise  to  pay  a  part,(z)  un- 
less the  drawer  expressly  limit  his  liability  to  the  payment  of 
that  part  only  ;  {a)  an  admission  by  the  drawer,  after  suit  was 


(9)  Read  v.  Wilkinson,  2  Wash.  C.  C.  514. 

(r)  Hopkins  v.  Liswell,  12  Mass.  .52.  But  in  Freeman  v.  Boynton,  17  id.  483,  where 
the  indorser  complained  of  the  hardship  of  his  case,  but  promised  to  pay  as  soon  as  he 
possibly  could,  or  words  to  that  effect,  Parker,  J.  said,  that  "  the  facts  reported  do 
not  show  any  direct  promise  to  pay." 

(s)  Byram  v.  Hunter,  36  Maine,  207. 

(t)  Hopes  V.  Alder,  6  East,  16,  note. 

(u)  Lane  v.  Steward,  20  Maine,  98. 

(v)  Rogers  v.  Hackett,  1  Foster,  100. 

(w)  Duryec  v.  Dennison,  5  Johns.  248. 

(x)  Donaldson  v.  Means,  4  Dall.  109. 

{y)  Beck  );.  Thompson,  4  Harris  &  J.  531. 

(z)  Harvey  v.  Troupe,  23  Missis.  538,  where  the  judge,  at  Nisi  Prius,  charged  tlic  jury 
Ihat  "A  promise  by  a  drawer  of  a  bill  of  exchange,  after  its  maturity,  to  pay  the  same, 
or  any  part  thereof,  is  a  waiver  by  him  of  presentment  to  the  acceptor,  of  demand  of 
payment,  and  notice  of  protest."  Held  correct.  Smith,  C.  J.  said  :  "  A  promise  to  pay 
generally,  or  a  promise  to  pay  a  part,  or  a  part  payment  made,  with  a  full  knowledge 
that  he  has  been  released  from  liability  on  the  bill  by  the  neglect  of  the  holder,  will 
operate  as  a  waiver,  and  bind  the  party  who  makes  it  for  the  payment  of  the  whole 
bill."  In  Margetson  v.  Aitken,  3  Car.  &  P.  338,  there  was  no  proof  of  any  notice  of 
dishonor,  but  after  the  bill  had  become  due,  the  indorser  offered  to  pay  the  plaintiff  a 
composition  of  eight  shillings  in  the  pound.  Lord  Tenierden  expressed  an  opinion  that 
this  dispensed  with  the  necessity  of  notice. 

(a)  Harvey  v.  Troupe,  23  Missis.  538,  where  tlic  bill  was  for  $  1,309.25.  The  drawer 
paid  $  250,  promised  to  pay  $  900  more,  but  claimed  a  credit  for  some  cotton  shipped 
by  him  to  the  acceptors.  Fletcher  v.  Froggatt,  2  Car.  &  P.  569,  where  the  drawer  of  a 
bill  for  £  200,  not  having  received  due  notice  of  its  dishonor,  stated  to  a  witness  that 


598  NOTES   AND    BILLS.  [CH.  XIH. 

commenced,  of  the  justice  of  the  plaintiff's  claim ;  {b)  a  state- 
ment by  the  indorser,  during  the  pendency  of  the  suit,  that  the 
maker  had  promised  to  make  some  arrangement,  and  that  he, 
the  indorser,  would  pay  in  the  course  of  a  few  months ;  (c)  an 
acknowledgment  of  the  debt  by  the  drawer,  with  a  promise  to 
pay  by  instalments,  on  short  t\me.{d)  The  question,  what  infiu 
ence  the  usage  of  banks  may  have  upon  the  matter  of  waiver  of 
demand,  has  already  been  considered, (e)  as  well  as  the  indorse 
ment  of  a  joint  note  where  the  makers  live  so  far  apart  that  a 
demand  on  all  on  the  same  day  is  impossible  ;  (/)  or  where  the 
indorsement  is  made  so  soon  before  maturity  as  to  render  a 
demand  on  the  very  day  of  maturity  impossible. (g-)  In  the  fol- 
lowing instances  the  promises  have  been  held  not  to  be  suffi- 
ciently clear  aud  distinct  to  show  a  waiver.  A  reply  by  tho 
indorser,  upon  being  asked  what  would  be  done  with  the  note, 
that  it  will  be  paid ;  (A)  a  reply  by  an  indorser,  to  the  question 
whether  he  had  any  defence,  that  he  knew  of  no  defence ;  (i)  a 
remark  of  an  indorser  to  a  third  party,  speaking  of  several  bills, 
that  he  would  take  care  of  them,  or  see  them  paid,  it  not  being 
certain  whether  the  bill  in  suit  was  referred  to  or  not ;  (j)    a 

he  did  not  mean  to  insist  upon  want  of  notice,  but  was  only  bound  to  pay  £70. 
Held,  that  the  plaintiff  could  only  recover  £  70. 
(6)  Oglesby  v.  Steamboat,  10  La.  Ann.  117. 

(c)  Hart  V.  Long,  1  Bob.  La.  83. 

(d)  See  Union  Bank  v.  Grimshaw,  15  La.  321. 

(e)  Supra,  chapter  on  Demand. 
(/)   Supra,  p.  457,  note  v. 

{g)  Sujira,  p.  456,  note  t. 

{h)  deamer  v.  Perry,  17  Pick.  332.  Shaw,  C.  J.  said:  "It  is  a  rule  of  law,  that  if 
an  indorser,  knowing  that  there  has  been  no  demand  and  notice,  and  conversant  with  all 
the  circumstance.'?,  will  promise  to  pay  the  note,  this  is  to  be  deemed  a  waiver.  But  theso 
rules  in  regard  to  notice  and  waiver  are  to  be  held  witli  some  strictness,  in  order  to  insure 

uniformity  of  practice  and  regularity  in  their  application In  the  present  case,  wo 

are  of  opinion  that  the  evidence  falls  short  of  proving  a  promise  by  tlie  dcfciulant,  cither 

to  pay  tiic  note  or  sec  it  paid The  strongest  expression  used  by  tlie  defendant 

in  the  course  of  a  long  conversation  was,  the  note  will  be  paid.  This  is  quite  as  con- 
sistent with  the  hypothesis  that  it  was  a  mere  assertion  of  liis  expectation  that  it  would 
be  paid  by  the  promisor,  as  of  a  promise  on  his  own  part  to  pay  it;  and  from  the  gen- 
eral tenor  of  his  conversation,  we  think  it  cannot  be  inferred  that  it  was  liis  intention, 
knowing  of  his  discharge,  to  waive  his  defence,  and  promise  to  pay  the  note,  or  see  it 
paid  at  ail  events."  Contra,  Bogcrs  v.  Stevens,  2  T.  K.  713,  where  the  drawer  said  to 
the  plaiiititl's  agent,  on  being  informed  tiiat  the  bill  had  been  dishonored,  "  It  must  be 
paid."     Lord  Keni/on  directed  a  verdict  fur  tin-  plaiiitilf,  whicli  was  susti.iiiecl. 

(i)  Gridin  r.  Golf,  12  Johns.  423. 

(_;■)   Miller  v.  Hacklcy,  5  Johns.  375,  Antlion,  01.      Van  Nrsa,  J.  said,  as  reported  in 


CH.  XIII.]  EXCUSES   FOR   WANT   OF  NOTICE.  599 

statement  by  the  drawer,  on  being  urged  by  the  agent  of  the 
hohlcr  to  give  a  good  bill  for  the  amount  of  the  first  bill, 
which  the  agent  said  was  unfair,  that  it  would  afford  him  great 
pleasure  to  do  so,  but  that  he  thought  it  improper ;  (k)  an  an- 
swer by  the  indorser  of  a  bill,  in  reply  to  a  demand,  stating 
that  he  could  not  think  of  remitting  till  he  received  the 
draft,  and  requesting  the  holder  to  return  it  to  the  prior  in- 
dorser, if  he  thought  him,  the  defendant,  unsafe ;  (/)  when  tlie 
drawer  said,  I  am  unacquainted  with  your  laws ;  if  I  am  bound 
to  |)ay  the  bill,  I  will ;  (m)  when  the  indorser  said  to  the 
bailiff,  who  had  arrested  him  for  the  debt,  that  it  was  true  the 
note  had  his  name  on  it,  but  he  had  security,  though  he  wished 
for  time  to  pay  it.(w) 


Johnson  :  "  I  think  there  was  not  the  requisite  evidence  of  snch  promise.  It  ought  to 
have  been  made  out  clearly  and  unequivocally.  The  defendant  only  said  to  a  third 
person,  when  talking  generally  of  all  the  bills,  ....  that  he  would  take  care  of  the  bills, 
or  see  them  paid.  Whether  he  used  the  one  phrase  or  the  other  is  left  in  doubt;  and 
if  the  first  phrase  was  used,  it  was  altogether  uncertain  whether  he  meant  to  be  under- 
stood tiiat  he  would  resist  or  would  pay  the  bills.  It  would  be  dangerous  to  fix  an  in- 
dorser, without  notice,  and  perhaps  without  knowledge,  of  the  laches  of  the  holder, 
upon  such  loose  conversation  with  a  third  person.     No  case  has  ever  gone  so  far." 

(k)  Sherrod  v.  Rhodes,  5  Ala.  683. 

(/)  Borradaile  v.  Lowe,  4  Taunt.  93,  where  Mamjield,  C.  J.  said  :  "  I  do  not  find 
any  case  in  which  an  indorser,  after  having  been  discharged  by  the  laches  of  the  holder, 
has  been  held  liable  upon  his  indorsement,  except  where  an  express  promise  to  pay  the 
bill  has  been  proved.  Now  the  letter  of  the  defendant  contains  no  such  express  prom- 
ise, but  in  a  great  measure  shows  that  the  defendant  was  writing  under  a  supposition 
that  he  was  liable,  and  that  the  prior  indorsers  would  pay  the  bill ;  for  he  desires  that 
it  may  be  sent  to  Trevor  &  Co.,  who  were  the  indorsers  next  in  priority ;  but  when  he 
afterwards  finds  that  the  case  is  otherwise,  and  that  the  other  indorsers  would  not 
pay,  and  that  he  also  was  discharged,  he  refuses,  as  it  was  still  open  to  him  to  do.  I 
cannot  consider  the  letter  as  conveying  an  absolute  promise  to  pay  at  all  events, 
whether  Trevor  &  Co.  did  or  not ;  and  I  think,  in  this  case,  it  would  be  too  much  to 
fix  the  defendant  by  any  such  implied  promise.  In  most  of  the  cases  where  the  de- 
fendants have  been  held  liable,  they  have  either  made  an  express  promise  to  pay,  or  a 
promise  when  they  had  a  full  knowledge,  at  the  time  they  were  discharged,  or  where 
there  was  a  real  debt  binding  in  conscience,  due  from  them ;  but  none  of  the  cases 
have  gone  to  the  extent  of  making  the  defendant  liable  ;  and  to  hold  that  he  wa^,  in 
this  instance,  would  be  extending  them  beyond  their  fair  import." 

(m)  Dennis  v.  Morricc,  3  Esp.  158. 

(n)  Rouse  v.  Redwood,  1  Esp.  1.5.5,  where  Lord  Kenyon  said:  "When  a  person  is 
arrested,  and  at  the  time  ignorant  of  his  rights,  or  whether  he  is  bound  by  law  to  pay 
the  demand  or  not,  and  under  such  circumstances  makes  any  concession,  and  seem- 
iu~ly  admits  the  demand,  such  admission  shall  not  be  allowed  to  be  given  in  evi- 
dence to  charge  him."  See  Cuming  v.  French,  2  Camp.  106,  note;  Ma\- w.  Coffin,  4 
Mass.  341. 


600  NOTES   AND    BILLS.  [CH.  XIIl 

It  lias  often  been  said  that  the  promise  must  not  be  condi- 
tional ;  (o)  but  the  authorities  in  which  this  doctrine  is  held  dp 
cide  only  that  a  conditional  promise  which  is  unaccepted  is  not 
binding,(7?)  And  we  think  the  rule  should  be  so  stated,  because 
if  the  holder  agrees  to  perform  the  conditions  stipulated,  and  does 
substantially  carry  them  out,  this  would  seem  to  show  an  intent 
to  waive  objection  to  any  laches  equally  with  a  direct  uncondi- 
tional promise. (7)  Thus,  an  offer  by  the  drawer  to  pay  by 
instalments,  substantially  accepted,  has  been  held  binding. (r) 

The  following  are  instances  in  which  a  conditional  promise, 
not  accepted,  has  been  held  not  binding.  An  offer  by  tlie  in- 
dorser  to  give  his  own  note,  payable  in  a  year,  refused  by  the 
holder,  because  he  wished  an  indorser  to  this  note  ;  (s)  an  offer  by 
an  indorser  to  turn  out  notes  ;  (l)  an  offer  by  an  indorser  to  pay 

(0)  See  Donaldson  v.  Means,  4  Dall.  109;  Dayton,  J.,  Sussex  Bank  v.  Baldwin,  2 
Harrison,  487,  495,  496  ;  Daniel,  J.,  Moore  v.  Tucker,  3  Ired.  347. 

(p)  In  Grain  v.  Colwcll,  8  Johns.  384,  the  court  said:  ''The  promise  was  condi- 
tional, and  not  binding,  except  upon  the  terms  imposed."  In  the  cases  cited  infra, 
the  offers  were  rejected.  Sice  v.  Cunningham,  1  Cowen,  397.  In  Barkalow  v.  Joiin- 
son,  1  Harrison,  397,  403,  Hornhloiver,  C.  J.  said :  "  The  offer  made  by  the  defendant 
not  having  been  accepted,  matters  remained  in  statu  quo,  and  each  party  stood  upon  their 
legal  rights."  In  Kennon  r.  McRca,  7  Port.  Ala.  175,  184,  Collier,  C.  J.  said  :  "If 
conditional,  the  performance  of  the  condition  must  be  proved,  before  the  promise  or 
acknowledgment  becomes  absolute."     See  Cuming  v.  French,  2  Camp.  106,.  note. 

{q)  Thus  it  will  be  seen  in  the  cases  cited  su/ira,  that  the  ])romises  were  held  bind- 
ing, although  conditional.     But  the  conditions  were  accepted. 

(r)  Sec  Union  Bank  v.  Grimshaw,  15  La.  321,  339,  where  Mor/ihy,  J.  said:  "In 
defendant's  first  letter  to  the  plaintiff',  after  fully  acknowledging  his  obligation  to  pay 
his  bills,  he  proi)oses  to  renew  them  at  four,  six,  eight,  and  ten  months'  sight,  with  in- 
terest, under  the  most  solemn  assurances  of  payment  Nine  months  after,  he  writes 
two  other  letters  in  the  same  sense,  asking  the  plaintiffs'  indulgence  on  paying  part, 
and  offering  additional  security.     It  is  objected,  that  the.sc  propositions  of  defendant 

were  rejected,  and  that  his  promises  to  pay  were  conditional The  defendant's 

propositions,  it  is  true,  were  not  formally  accepted,  but  in  consequence  of  his  un(juali- 
tied  acknowledgment  of  the  debt,  and  positive  assurances  of  payment,  the  ])laintitf  for- 
bore to  bring  suit  until  the  22d  of  February,  1838  ;  thus  granting  him  a  delay  of  nine 
months,  a  greater  or  more  ailvantageous  indulgence  than  he  had  asked.  It  docs  not 
appear  to  us  that  there  is  any  condition  in  the  defendant's  letters ;  there  is  term  of 
payment,  but  not  a  condition.  They  are  two  things  very  distinct ;  the  former  neces- 
sarily presupposing  a  debt,  and  the  latter  not.  '  A  term,'  says  I'othicr,  No.  230  on 
Obligations,  'differs  from  a  condition,  inasmuch  as  a  condition  suspends  the  cm/aijc- 
meiil  formtd  by  the  (u/reement ;  whereas  a  term  does  not  suspend  the  cngngenicnt,  but 
merely  post|)one8  the  execution  of  it.'  ....  Defendant's  acknowledgment  of  the  debt, 
and  his  promise  to  pay  it,  must  then  be  viewed  either  as  an  admission  that  the  noliccj 
were  good,  or  as  a  waiver  of  them." 

(«)   Agan  r.  M'.Manns,  II  Johns.  180. 

(t)  Crain  1;.  Colwcll,  8  Johns.  384. 


CH.  XIII.]  EXCUSES    FOR   WANT    OF   NOTICE.  601 

part  in  cash,  and  to  give  his  note  for  the  balance  ;  (ii)  an  offer  by 
the  indorser  to  give  a  new  note  of  the  same  maker,  indorsed  by 
him,  refused  by  the  holder,  who  asked  the  indorser's  own 
note ;  (v)  an  offer  by  an  indorser  to  give  his  own  note.(2^) 

It  seems  to  l)e  well  settled,  that  a  mere  promise  to  pay,  al- 
though direct  and  unqualified,  will  not  be  sufficient  to  constitute 
a  waiver,  where  it  appears  that  demand  was  not  made  nor  no- 
tice given,  or  where  there  was  actual  laches  in  the  acts  them- 
selves. The  plaintiff  in  each  case  must  go  further,  and  prove 
knowledge,  on  the  part  of  the  party  promising,  of  the  facts. (x) 


(w)  Barkalow  v.  Johnson,  1  Harrison,  397. 

(v)  Laporte  v.  Landry,  17  Mart.  La.  359,  16  id.  125. 

{iv)  Sice  V.  Cunningham,  1  Cowen,  397. 

(ar)  Kelley  v.  Brown,  5  Gray,  108  ;  Low  v.  Howard,  10  Cush.  159  ;  Hopkins  v.  Li8- 
well,  12  Mass.  52.  See  Freeman  v.  Boynton,  7  id.  483  ;  Hunt  v.  Wadleigh,  26  Maine, 
271  ;  Davis  v.  Gowcn,  17  id.  387  ;  Groton  v.  Dallheim,  6  Greenl.  476;  Edwards  r. 
Tandy,  36  N.  H.  540;  Woodman  v.  Eastman,  10  id.  359;  Carter  v.  Burley,  9  id. 
558,572;  Farrington  v.  Brown,  7  id.  271,  where  an  indorser  signed  an  instrument 
stating  that  he  held  himself  accountable.  Held  not  binding,  because  not  proved  to 
have  been  made  with  knowledge  of  laches.  Otis  v.  Husscy,  3  id.  346  ;  Jones  v.  Sav- 
age, 6  Wend.  658;  Sice  v.  Cunningham,  1  Cowen,  397  ;  Trimble  v.  Tiiorne,  16  Johns. 
152  ;  Beekmau  v.  Connelly,  cited  16  id.  1.54 ;  Grain  v.  ColwcH,  8  id.  384  ;  Sussex  Bank 
V.  Baldwin,  2  Harrison,  487  ;  U.  S.  Bank  v.  Southard,  id.  473  ;  Barkalow  v.  Johnson, 
1  id.  397  ;  Philips  v.  M'Curdy,  1  Harris  &  J.  187  ;  Patton  v.  Wilmot,  id.  477  ;  Bank  of 
U.  S.  V.  Leathers,  10  B.  Mon.  64,  66  ;  Moore  v.  CoffieM,  1  Dev.  247  ;  Fothcringham 
ti.  Price,  1  Bay,  291 ;  Spurlock  v.  Union  Bank,  4  Humph.  336  ;  Brown  v.  Lusk.  4  Yerg. 
210;  New  Orleans  Bank  v.  Harper,  12  Rob.  La.  231  ;  Lacostc  v.  Harper,  3  La.  Ann. 
385  ;  Glenn  v.  Thistle,  1  Rob.  La.  572  ;  Harris  v.  Allnutt,  12  La.  465  ;  Tickncr  v.  Rob- 
erts, 1 1  id.  14.  But  in  Walker  v.  Lavcrty,  6  Munf  487,  the  drawer  acknowledged  that 
the  debt  was  a  just  one,  and  said  that  he  would  pay  it.  The  defendant's  counsel  asked 
the  court  to  charge  the  jury,  that,  unless  the  acknowledgment  was  made  with  a  knowl- 
edge of  the  facts,  it  was  not  to  be  received.  But  the  court  instructed  the  jury,  that 
the  acknowledgment  was  a  waiver  of  all  notes.  A  judgment  for  the  plaintift'  was 
affirmed.  The  reasons  for  the  opinion  of  the  court  are  not  stated.  It  may  be,  how- 
ever, that,  inasmuch  as  it  was  a  question  of  waiver  of  notice,  they  proceeded  upon  the 
ground  that  ihe  defendant  must  have  known  whether  he  had  received  notice  or  not 
This  case  is  recognized  in  Pate  v.  M'Clure,  4  Rand.  Va.  164;  Blesard  v.  Hirst,  5 
Burr.  2670.  See  Goodall  v.  Dolley,  1  T.  R.  712.  In  Hopley  v.  Dufresne,  15  E.ist, 
275,  the  plaintiff  had  been  nonsuited  because  the  presentment  had  been  made  after  bank- 
ing hours,  although  there  was  evidence  that,  after  the  declaration  hail  been  filed,  the 
defendant  had  applied  for  an  extension  of  time  within  which  to  pay  the  bill.  It  did 
not  expressly  appear  whether  the  defendant  knew,  at  the  time,  of  the  defect  in  the  pre- 
sentment. "  Lord  Ellenboroufjb ,  stopping  the  argument,  said  that  the  court  thought 
th.it  it  should  have  been  left  to  the  jury  to  say  whether,  under  the  circumstances  of 
the  case,  the  defendant  had  notice,  at  the  time  of  his  application  for  indulgence,  that 
there  had  been  no  due  presentation,  and  therefore  made  the  rule  absolute  "  for  a  new 
trial.     In  Pickin  v.  Graham,  1  Cromp.  &  M.  725,  the  clerk  of  the  defendant,  a  drawer, 

VOL.    I.  51 


602  NOTES   AND   BILLS.  [CH.  XTH. 

It  has  been  sometimes  said  that  a  waiver  cannot  be  inferred. (y) 
But  if  by  this  is  meant  that  direct  knowledge  must  be  proved, 
we  thmk  it  incorrect.  Indeed,  there  does  not  appear  to  be  any 
good  reason  why  knowledge  may  not  be  proved  in  the  same 
manner  and  by  the  same  evidence  in  this  matter  as  in  any  other. 
A  jury  will  be  justified  in  inferring  knowledge  from  a  variety  of 
circumstances,  such  as  the  situation  and  connection  of  the  par- 
ties, the  words  and  acts  of  the  indorser,  the  time  which  has 
elapsed  between  the  maturity  of  the  note  or  bill  and  the  prom- 
ise, and  the  like. (2)     It  would  seem  that,  where  the  question 


called  upon  an  indorser  the  day  after  maturity ;  but  before  it  could  be  known  that  the 
bill  had  been  dishonored,  and  after  it  had  been  intimated  that  the  acceptor  would  not  or 
could  not  probably  pay,  the  clerk  said  :  "  If  that  be  so,  I  suppose  there  is  no  alternative 
but  for  me  to  pay  the  bill ;  if  you  will  bring  it  to  Sheffield  next  Tuesday,  I  will  pay  it." 
Held  not  binding,  the  defendant  having  received  no  notice  till  several  days  after  matn- 
rit}-.  The  rule,  as  stated  in  the  text,  however,  is  inconsistent  with  the  language  used  in 
some  of  tiie  cases,  where  it  is  stated  that  a  promise  to  pay  will  dispense  with  proof  of 
presentment  and  notice,  and  throw  on  the  defendant  the  doulile  burden  of  proving  laches 
and  ignorance.  This  point  is  treated  infra,  p.  624.  So  in  Schmidt  v.  Kadcliffe,  4 
Strob.  296,  where  the  indorser  promised  to  pay  eight  months  after  maturity,  the  maker 
and  indorser  residing  in  the  same  place,  and  having  frequent  business  transactions  with 
each  other,  the  court  seem  to  have  considered  the  promise  sufficient. 

(y)  See  Laportc  v.  Landry,  16  Mart.  La.  125,  17  id.  359. 

(-)  In  Martin  v.  Winslow,  2  Ma.son,  241 ,  where  there  had  been  a  delay  of  seven  months 
to  demand  payment  of  the  note  which  was  payable  on  demand,  which  is  an  unreason- 
able delay  under  ordinary  circumstances,  Sloni,  J.  charged  the  jury  as  follows  :  •'  A 
promise  to  pay,  with  a  full  knowledge  of  all  the  facts,  is  binding  upon  the  indorser, 
although  he  might  otherwise  be  discharged.  But  if  he  promise  in  ignorance  of  mate- 
rial facts  aiTecting  his  rights,  it  is  not  a  waiver  of  those  rights.  The  question,  then,  is, 
whether  the  indorser  in  this  case  had  sucii  knowledge.  It  may  be  inferred  from  the 
connection  between  the  parties,  their  near  relationship,  and  the  deep  interest  which  the 
defendant  had  in  this  particular  case  to  ascertain,  after  the  death  of  the  maker,  his  own 
responsibility  as  indorser.  It  may  also  be  inferred  fiom  the  language  used  by  iiim  on 
this  occasion.  He  did  not  object  to  the  delay,  though  he  knew  the  length  of  timo 
wliich  had  elapsed  since  the  note  was  given.  As  no  objection  of  this  sort  was  made, 
it  leads  to  the  presumption,  cither  that  the  indorser  understood  originally  that  the  note 
was  to  lie  uni)aid  for  a  period  at  least  as  long,  or  that,  under  all  tlic  circumstances,  he 
did  not  deem  it  an  unreasonable  delay.  He  had  no  ground  to  prcsuTue  that  any 
demand  of  ])aymctit  was  made  of  the  maker  in  his  lifetime,  and  the  fact  that  the  first 
known  demand  was  on  the  administrators,  and  the  first  notice  given  to  him  after  that  de- 
mand, would  strongly  lead  him  to  the  conclusion  that  tliere  ha<l  been  no  prior  demand. 
And  in  fact  no  prior  demand  was  made.  But  as  these  are  mere  [)rcsuni])ti(>ns  of  fact 
arising  from  the  circumstances,  the  jury  will  give  tliem  wliat  weight  they  think  theiii  en- 
titled to."  Sec  the  rem;irks  of  fJnstis,  J.,  cited  infra,  p.  608,  note  /),  where  an  indo'-ser 
of  ft  bill,  after  having  had  suflicient  ojiportunity  to  ascertain  the  circiunstances  of  the 
presentment,  protest,  and  notice,  promised  a  sulisequent  indorser  who  had  taken  up  the 
bill  to  repay  him,  afterwards  received  the  bill  from  this  indorser,  proved  it  in  hiti  cwn 


CH.  XIII.]  EXCUSES   FOR    WANT    OF   NOTICE.  603 

was  one  of  waiver  of  notice  alone,  an  iinc(|uivocal  promise  on 
the  part  of  the  indorser  or  drawer  would  ordinarily  be,  at  least, 
prima  facie  sufficient ;  because  the  party  must  know  whether  he 
had  received  notice  or  not ;  and  a  promise  to  pay  when  no  notice 
at  all  has  been  given,  would  seem  to  show  an  intent  to  waive  objec- 
tion to  liability  on  this  account.  There  are  authorities  in  which 
this  view  seems  to  be  adopted, («)  but  it  is  inconsistent  with  oth- 


namc  against  the  estate  of  the  drawer  who  had  failed,  received  a  dividend  upon  it,  and 
retained  the  bill.  Held  that  he  was  liable  on  this  promise,  unless  he  could  prove  it  to 
luive  been  made  under  a  mistake  of  the  facts.  Martin  v.  Ingersoll,  8  Pick.  1.  In  Hop- 
ley  V.  Dufresne,  15  East,  275,  the  facts  in  which  are  cited  supra,  p.  601,  note  x,  the 
grounds  on  which  it  was  contended  that  the  indorser  knew  that  the  presentment  had 
been  defective  appear  to  have  been,  that  the  defendant,  an  indorser  of  a  bill,  applied 
for  an  extension  after  the  declaration  had  been  filed,  which  alleged  due  presentment. 
Lord  Ellenborough  appears  to  have  considered  these  circumstances  so  fiir  sufficient  as  to 
authorize  the  question  of  knowledge  to  be  submitted  to  the  jury.  In  Patterson  v. 
Bccher,  6  J.  B.  Moore,  319,  the  defendant,  a  drawer  of  a  bill,  appears  to  have  made  a 
promise  to  the  plaintiff's  attorney  ;  and  subsequently,  on  the  same  day,  the  defendant's 
attorney  wrote  a  letter  to  the  attorney  of  the  plaintiff,  stating  that  he  had  waited  on  the 
defendant  and  advised  with  him  respecting  the  demand ;  and  that,  in  behalf  of  the 
defendant,  he  offered  to  give  a  warrant  of  attorney  for  the  amount,  payable  in  threo 
months,  the  earliest  period  that  he  could,  with  any  degree  of  certainty,  fix  for  the  pay- 
ment of  the  same.  Although  the  facts  do  not  show  whether  there  was  any  presentment 
or  protest,  yet  the  court  seem  to  have  decided  the  case  upon  the  ground  that  the  above 
facts  constituted  a  waiver  of  presentment,  and  not  merely  presumptive  evidence.  See 
Schmidt  V.  Radcliffe,  4  Strob.  296. 

(a)  See  the  remarks  of  Washington,  J.  cited  infra,  p.  605,  note  g.  See  Walker 
V.  Laverty,  6  Munf.  4S7,  supra,  p.  601,  note  x;  Pate  v.  M'Clure,  4  Rand.  Va.  164; 
Rogers  v.  Hackett,  1  Foster,  100,  infra,  p.  605,  note  e;  Wilkes  v.  Jacks,  Peake,  202  ; 
Nash  V.Harrington,  1  Aikens,  39,  2  id.  9  ;  Ladd  v.  Kenney,  2  N.  H.  340,  where  the 
presentment  was  in  due  season.  Richardson,  C.  J.  said  :  "  In  the  present  case,  the  de- 
fendant, when  informed,  more  than  four  weeks  after  the  note  became  due,  that  it  had 
not  been  paid,  made  no  objection  that  he  had  not  been  seasonably  notified,  but  prom- 
ised to  see  the  maker,  and  have  the  note  paid  before  he  returned  home.  We  are  of 
opinion  that  the  jury  were  rightly  directed  to  consider  such  a  promise  as  a  waiver 
of  any  objection  to  the  notice,  and  that  there  must  be  a  judgment  on  the  verdict. 
See  the  remarks  of  Weston,  C.  J.,  cited  infra,  p.  604,  note  d;  of  Shaw,  C.  J.,  infra, 
p.  606,  note  k.  In  the  facts  as  reported  there  does  not  appear  to  have  been  any 
evidence  of  actual  knowledge  that  no  notice  had  been  given.  In  Fitch  v.  Redding, 
4  Sandf.  130,  where  the  defence  was  want  of  proof  of  notice,  the  drawer  of  the  check 
apologized  for  its  not  being  paid,  and  gave  as  a  reason,  that  it  was  not  convenient  at 
the  time,  but  promised  to  pay  it  in  a  few  days.  Diter,  J.  said  :  "  As  the  defendant  had 
no  funds  in  the  bank  upon  which  the  check  was  drawn,  he  was  not  entitled  to  notice  ; 
and  had  he  been  notified,  his  subsequent  promise  to  pay  the  check  would  have  been  a 
waiver  of  the  defence."  There  does  not  appear  to  have  been  any  evidence  of  knowl- 
edge of  want  of  notice.  In  Barkalow  v.  Johnson,  1  Harrison,  397,  402,  Hornhloiver, 
C.  J.,  after  referring  to  the  absence  of  fiicts  showing  knowledge,  said  that  the  indorser' 
"  knew  indeed  whether  he  had  or  had  not  received  a  notice  of  demand  and  non-pay 


604 


NOTES   AND    BILLS. 


[cH.  xm. 


ers.(6)  In  the  following  instances,  the  finding  of  the  jury,  that 
the  defendant  had  knowledge  of  the  facts,  was  held  to  be  justi- 
fied ;  where  the  agent  of  the  plaintiff  called  on  the  defendant, 
and  informed  him  that  he  had  neglected  to  take  measures  for 
the  collection  of  the  note,  and  asked  him  what  he  should  do  ;  (c) 
where  the  drawer  of  a  draft,  on  being  informed  of  its  non- 
payment, took  the  draft  to  obtain  payment,  and  afterwards 
returned  it,  saying  that  he  was  unable  to  procure  payment ;  (d) 


ment."  In  Debuys  v.  Mollere,  15  Mart.  La.  318,  Mathews,  J.  said  :  "  This  agreement 
is  equivalent  to  a  promise  to  pay,  and  it  only  remains  to  ascertain  the  legal  effect  of 
the  promise.  The  indorser  must  have  known  whether  he  was  duly  notified  of  the  pro- 
test. If  he  were  not,  by  promising  to  pay  he  waived  the  advantage  which  such  negli- 
gence would  otherwise  have  given ;  if  he  did  not  receive  regular  notice,  he  is  liable 
under  his  subsequent  promise."  See  Nash  v.  Harrington,  1  Aikens,  39,  2  id.  9  ;  Loose 
V.  Loose,  36  Penn.  State,  538. 

(b)  Trimble  v.  Thorne,  1 6  Johns.  152.  Spencer,  C.  J.  said  :  "  The  court  never  intended, 
in  the  various  cases  which  have  come  before  tliem  on  this  point,  to  leave  it  to  be  inferred, 
from  the  mere  fact  of  the  subsequent  promise,  that  regular  notice  had  been  given,  or 
was  intended  to  be  waived.  In  the  case  of  Bcekman  v.  Connelly,  recently  before  us, 
we  held,  that  the  proof  of  a  promise  to  pay,  merely,  without  its  appearing  also  that  the 
party  knew  he  had  not  received  regular  notice,  did  not  dispense  with  the  proof  of  regu- 
lar notice.  An  indorser  may  believe  that  due  notice  has  been  given,  inasmuch  as 
notices  need  not  be  personally  served,  and  under  an  ignorance  of  the  fact,  consider 
himself  liable  when  he  is  not.  It  is  no  hardship  on  the  holder  of  a  bill  or  note,  to  re- 
quire of  him  proof  of  regular  notice  ;  but  if  a  party,  with  a  full  knowledge  of  all  the 
facts,  voluntarily  promises  to  pay,  and  waives  his  right  to  notice,  he  will  be  held  to  his 
promise."  This  case  has  been  overruled  by  another  in  the  same  jurisdi('tion,  and  much 
doubted  in  others,  as  will  be  seen  subsequently,  but  on  another  point.  So  Duyton,  J., 
in  Sussex  Bank  i'.  Baldwin,  2  Harrison,  487,  496,  said,  that  "an  admission  that  notice 
of  the  protest  had  been  received  through  tlie  bank  is  nothing.  It  docs  not  appear 
ivhen  it  was  received."  Hicks  v.  Duke  of  Beaufort,  4  Bing.  N.  C.  229 ;  New  Orleans 
Bank  v.  Harper,  12  Hob.  La.  231  ;  Lacoste  v.  Harper,  3  La.  Ann.  385  ;  Glenn  v.  This- 
tle, 1  Rob.  La.  572;  Harris  v.  Allnutt,  12  La.  465  ;  Laporte  v.  Landry,  17  Mart.  La. 
359,  16  id.  125. 

(c)  Sigerson  v.  Mathews,  20  How.  496. 

{d)  Cram  v.  Sherburne,  14  Maine,  48.  Weston,  C.  J.  said  :  "It  is  insisted  that  there 
is  no  evidence  that  the  defendant  knew  that  the  plaintiff  had  been  guilty  of  laches,  and 
that  therefore  the  judge  was  not  justified  in  leaving  it  to  the  jury  to  find  such  knowl- 
edge. We  think  otherwise.  The  defendant  knew  that  no  notice  had  l)ecn  given  to 
him  that  the  note  was  not  paid,  until  a  month  after  it  was  drawn,  although  it  was  pay- 
able in  three  days.  And  his  conduct  is  evidence  that  he  knew  the  order  had  not  been 
demanded  at  its  maturity,  for  he  himself  undertook  at  that  time  to  make  the  demand 
for  the  plaintiff  of  the  drawer,  who  declined  to  pay  it.  He  knew  this  demand  was 
unreasonable,  notwithstanding  which  he  expressly  promised  the  plaintiff  to  ]>ay  him 
the  amount  of  the  order.  The  demand  made  by  the  defendant  was  either  made  by 
him  as  agent  for  the  plaintiff,  the  holder,  or  it  is  evidence  that  he  undertook  to  do  it 
himself,  waiving  his  right  to  n'(iuire  that  it  should  !)e  done  by  the  plaintiff".     And  in 


CH.  XIII.]  EXCUSES   FOR   WANT   OF   NOTICE.  605 

where  the  holder  testified  that  the  indorscr  knew,  by  a  conversa- 
tion held  between  them,  tliat  no  demand  had  been  made  ;  (e)  an 
acknowledgment  of  liability  by  the  first  indorser,  coupled  with 
an  agreement  to  pay  one  fourth  of  the  note,  subsequent  to  a  suit 
against  him  by  the  holders,  and  judgment  obtained  after  con  tes- 
tation.(/) 

In  the  following  instances,  the  evidence  was  held  not  sufficient 
to  show  knowledge.  A.  statement  by  the  indorser  that  he  knew 
that  the  maker  had  not  paid,  and  was  not  to  pay  the  note  ;  that  it 
was  the  concern  of  himself  alone,  and  that  the  maker  had  noth- 
ing to  do  with  it;  (g-)  knowledge  that  a  note  had  not  been  paid,(/«) 
because  a  knowledge  of  non-payment  is  not  a  knowledge  of  non- 
presentment  ;  a  statement  by  an  indorser,  that  he  had  no  depend- 


either  case  it  is  evidence,  by  necessary  implication,  of  a  waiver  of  notice  of  non-pay 
ment  from  the  phiintifF." 

(e)  Rojjers  v.  Hackett,  I  Foster,  100.  This  was  held  a  waiver  of  demand  and  no- 
tice ;  nothinii  appears  to  be  said  as  to  the  knowledge,  or  want  of  knowledge,  of  the 
notice  not  being  given. 

(/)  Keeler  v.  Bartine,  12  Wend.  110.  In  this  case  judgment  had  been  obtained 
against  the  last  indorser,  and  the  maker  and  indorser  had  agreed  that  each  should  pay 
one  fourth  of  the  judgment,  and  neither  party  should  look  to  the  other  for  any  part  so 
agreed  to  be  paid  by  him.  The  second  indorser,  nevertheless,  after  payment  of  his 
fourth  part,  sued  the  first  indorser  for  the  amount,  and  recovered,  because  there  was 
no  consideration  for  the  agreement.  It  was  in  this  last  suit  that  the  defendant  was 
presumed,  from  the  facts,  to  have  had  knowledge  of  laches,  and  demand  and  notice,  if 
any  existed. 

(g)  Thornton  v.  Wynn,  12  Wheat.  183,  188.  Waahingion,  J.  said  :  "These  decla- 
rations  amounted  to  an  unequivocal  admission  of  the  original  liability  of  the  defendant 
to  pay  tlie  note,  and  nothing  more.  It  does  not  necessarily  admit  the  right  of  the 
holder  to  resort  to  him  on  the  note,  and  that  he  had  received  no  damage  from  the  want 
of  notice,  unless  the  jury,  to  whom  the  conclusion  of  the  fiict  from  the  evidence  ought 
to  have  been  submitted,  were  satisfied  that  the  defendant  was  also  apprised  of  the 
laches  of  the  holder,  in  not  making  a  regular  demand  of  payment  of  the  note,  by  which 
he  was  discharged  from  his  responsibility  to  pay  it  The  knowledge  of  this  fact  formed 
an  indispensable  part  of  the  plaintiff's  case,  since  without  it,  it  cannot  fairly  be  inferred 
that  the  defendant  intended  to  admit  the  right  of  the  plaintiff"  to  resort  to  him,  if,  in 
point  of  fact,  he  had  been  guilty  of  such  laclies  as  would  discharge  him  in  point  of 
law.  For  anything  that  appeared  to  the  court  below,  from  the  evidence  stated  in  the 
bill  of  exceptions,  the  admissions  of  the  defendant  may  have  been  made  ujton  the  pre- 
sumption that  the  holder  had  done  all  that  the  law  required  of  him,  in  order  to  charge 
the  indorser.  That  due  notice  was  not  given  to  the  defendant,  he  could  not  fail  to 
know  ;  but  that  a  regular  demand  of  the  maker  of  the  note  could  not  be  inferred  by 
the  court  from  the  admissions  of  the  defendant." 

(A)  Low  V.  Howard,  11  Cush.  268,  where  a  charge  to  a  jury,  that  a  promise  to  pay, 
with  full  knowledge  that  the  note  had  not  been  paid  nor  notice  given,  was  a  waiver  of 
dciinind  anvl  notice,  was  held  incorrect. 
51* 


606 


NOTES   AXD   BILLS. 


[CH.  xm. 


ence  on  the  maker  to  pay  the  note,  that  he  understood  that  the 
note  was  lying  over  unpaid,  and  he  expected  it  would  have  been 
Bent  on  for  collection  before  ;  (i)  the  fact  that  the  drawer  has  in- 
cluded the  demand  in  an  account  for  his  creditors,  in  an  applica- 
tion for  his  discharge  in  insolvency. (7) 

Although  it  is  clear  that  a  promise  to  pay,  with  knowledge  that 
no  demand  has  been  made  nor  notice  given,  is  sufficient  to  con- 
stitute a  waiver  ;  yet  it  is  still  open  to  the  defendant  to  prove  that, 
although  he  knew  these  facts,  the  promise  was  made  in  ignorance 
of  other  material  circumstances,  which,  if  he  had  known,  would 
have  prevented  him  from  making  the  promise. (/<;)  Thus,  where 
the  holder  gave  up  the  indorsed  note  to  another  party,  receiving 
his  in  return,  under  circumstances  showing  that  the  latter  note 
was  taken  in  payment  of  the  former,  or  under  circumstances 
which  would  discharge  the  indorser,  and  subsequently  took  back 
the  former,  the  latter  being  unpaid,  a  promise  by  the  indorser  to 
pay,  in  ignorance  of  these  circumstances,  was  held  not  bind- 
ing. (/) 


(j)  U.  S.  Bank  v.  Southard,  2  Harrison,  473.  Ncviiis,  J.  said  :  "  Suppose  he  did  not 
expect  that  the  maker  would  pay  the  note,  this  would  not  absolve  the  holders  from 
their  obligation  to  make  the  demand  ;  and  suppose  it  to  be  true  that  he  was  informed 
that  the  note  was  laying  over  unpaid,  this  was  no  evidence  to  him  that  it  had  been 
duly  demanded  of  the  maker;  and  his  expectation  that  it  would  before  have  been  sent 
on  for  collection  does  not  prove  that  he  knew  that  he  was  discharged  by  tlie  laches  of 
the  holder." 

{j)  Jones  V.  Savage,  6  Wend.  658. 

(k)  Low  V.  Howard,  10  Cush.  159,  where  the  judge  at  Nisi  Prius  charged  the  jury 
that,  thougli  it  was  generally  true  that  a  promise  by  an  indorser  to  pay  the  note,  when 
there  had  been  no  demand,  and  no  notice  of  its  dishonor,  would  be  held  to  be  a  waiver 
thereof,  if  these  facts  were  known  to  him  ;  yet  the  rule  would  not  a])ply  to  a  case  where 
other  material  circumstances  existed,  the  knowledge  of  which  was  essential  to  a  full 
understanding  of  his  rights  and  obligations.  S/iaw,  C.  J.  said  :  "  We  think  the  direc- 
tions were  right.  The  legal  foundation  of  the  doctrine  of  waiver  is,  that  a  i)arty  know- 
ing his  rights  voluntarily  consents  to  forego  them Knowledge  of  all  the  nnitcrial 

facts  on  which  those  rights  depend  is  essential  to  a  valid  waiver.  The  legal  liability  of 
an  indorser  is  conditional  on  demand  and  notice.  But  the  condition  is  one  made  for 
his  benefit ;  and  therefore  he  may  waive  it.  If  he  is  satisfied  that  demand  and  notice 
would  be  of  no  benefit  to  him,  it  is  quite  natural  that  he  should  waive  them.  In  gen- 
eral, if  he  knows  there  has  been  no  demand  and  notice,  and  yet  promises  to  pay,  it  is 
strong  evidence  of  waiver.  But  if  there  be  other  facts  which  might  tend  to  intiuenco 
his  judgment,  known  to  the  holder,  but  not  to  tiic  indorser,  then  his  promise  to  pay  is 
not  conclusive  evidence.  Here,  then,  were  facts  alleged  to  be  material,  and  if  true,  were 
80,  and  they  were  left  to  the  jury  with  proper  directions,  who  found  a  verdict  for  the 
defendant,  and  therefore  afiirmed  the  truth  of  the  facts." 

(/j   Low  V.  Howard,  10  C^iisli.  159.    The  facts  in  this  case  were  as  follows.    The  hold<ir 


CH.  XIII.]  EXCUSES   FOR   WANT    OF   XOIICE.  607 

It  has  been  held  by  some  autliorities,  tliat  a  promise  to  pay  by 
the  iiidorser,  in  ignorance  of  the  fact  that  the  circumstances 
known  to  him  would  discharge  him  in  law,  was  not  binding ;  or, 
in  other  words,  that  a  promise  to  pay  in  ignorance  of  law  was  of 
no  effect. (w)     But  this  has  been  repudiated, (w)  and  with  reason, 

of  the  first  note  went  to  tlic  parties  in  whose  employ  the  maker  was,  to  endeavor  to 
obtain  payment  out  of  what  they  might  be  owing  the  maker.  Tiiey  took  tliis  note  and 
gave  their  own  for  the  same  amount,  payable  at  the  same  time,  wliich  the  liolder 
received  as  a  receipt  for  the  first.  They  owed  the  maker  at  the  time,  showed  him  the 
note,  and  with  his  consent  agreed  fo  charge  it  to  him.  The  makers  of  the  second  note 
became  insolvent,  and  tliere  had  been  no  settlement  between  them  and  the  maker  of 
the  first.  The  liolder  then  took  back  from  the  makers  the  first  note,  giving  up  the  sec- 
ond. Before  the  time  of  the  last  transfer,  one  of  the  makers,  who  had  obtained  posses- 
sion of  the  second  note,  had  erased  his  name  therefrom,  but  put  it  upon  the  note  again, 
at  the  suggestion  of  the  holder,  who  made  a  verbal  agreement  that  he  should  never  be 
called  on  for  payment. 

(m)  Warder  v.  Tucker,  7  Mass.  449,  where  the  court  said:  "And  although  the 
defendant,  when  he  first  received  notice  from  the  plaintiffs  of  the  protest  of  the  bill, 
considered  himself  as  liable  by  law  to  pay  the  plaintiffs  the  amount  of  it,  yet  his  igno- 
rance of  the  law  shall  not  bind  him  to  fulfil  an  engagement  made  through  mistake 
of  the  law."  In  Freeman  v.  Boynton,  7  Mass.  483,  Parker,  J.  said  :  "Nor  will  any 
supposed  acknowledgment  of  the  indorser,  that  he  was  liable  to  pay  the  note,  avail  the 
plaintiffs  in  the  present  case.  The  facts  reported  do  not  show  any  direct  promise  to 
pay,  and  even  if  they  did,  it  is  well  settled  that  a  promise  under  such  circumstances  as 
show  an  ignorance  that  the  party  was  legally  discharged  is  without  consideration  and 
void."  Fleming  v.  M'Clure,  1  Brev.  428.  See  Spurlock  v.  Union  Bank,  4  Humph. 
336.  In  Miller  v.  Hackley,  Anthon,  68,  Thompson,  J.  said  :  "  That  a  promise  may 
amount  to  a  waiver  in  a  case  like  the  present,  enough  must  appear  to  render  it  justly 
presumable  that  the  defendant  at  the  time  knew  the  fact  of  the  want  of  notice,  and 
also  knew  his  legal  rights."     See  Chatfield  v.  Paxton,  2  East,  471,  note  a. 

(7i)  Ladd  V.  Kenney,  2  N.  H.  340.  Cowen,  J,,  in  Tebbetts  i;.  Dowd,  23  Wend.  379, 
386,  said :  "  This  notion  has  long  since  been  exploded."  In  Richter  v.  Sclin,  8  S.  &  R. 
425,  438,  Duncan,  J.  said  :  "  His  ignorance  of  the  law  would  not  render  the  promise 
void.  For  if,  with  knowledge  of  the  fact  of  demand  not  having  been  made,  he  makes 
a  promise  under  the  supposition  that  he  will  be  still  liable  at  law,  it  will  be  valid."  So 
in  Kennon  v.  M'Rea,  7  Port.  Ala.  175,  184,  Collier,  C.  J.  said:  "And  it  will  make  no 
difference  that  a  promise  or  acknowledgment  was  made  under  a  misapprehension  of 
the  law ;  for  every  man  must  be  taken  to  know  the  law  ;  otherwise,  a  premium  is  held 
out  to  ignorance,  and  there  is  no  telling  to  what  extent  this  excuse  might  be  carried." 
Carr,  J.,  Pate  v.  M'Clure,  4  Rand.  Va.  164, 170.  See  Schmidt  i;  Radclittb,  4  Strob.  296 ; 
Bilbie  v.  Lumley,  2  East,  469,  where  "Lord  Ellenhovowjh,  C.  J.  asked  the  plaintiff's 
counsel  wliethcr  he  could  state  any  case  where,  if  a  party  paid  money  to  another  vol- 
untarily, with  a  full  knowledge  of  all  the  facts  of  the  case,  he  could  recover  it  back 
again  on  account  of  his  ignorance  of  the  law.  No  answer  being  given,  his  lordship 
continued.  The  case  of  Chatfield  v.  Paxton  is  the  only  one  I  ever  heard  of,  where 
Lord  Kcnyon,  at  Nisi  Prius,  intimated  something  of  that  sort.  But  when  it  was  after- 
wards brought  before  this  court  on  a  motion  for  a  new  trial,  there  were  some  other  cir- 
cumstances of  fiict  relied  on,  and  it  was  so  doubtful,  at  last,  on  what  precise  ground 
the  case  turned,  that  it  was  not  reported."     Stevens  v.  Lynch,  12  East,  38,  where  the 


603  NOTES   AXD   BILLS.  [CH.  Xm 

for  there  are  no  good  grounds  for  ■  maintaining  tliat  the  case  of 
waiver  is  an  exception  to  the  sound  maxim,  that  ignorance  of  law 
is  an  excuse  for  no  one. 

The  subject  of  part  payment  after  maturity  has  been  con- 
siderably discussed  with  respect  to  the  question  of  waiver, 
and  the  cases  are  not  entirely  in  unison.  It  would  seem  to 
be  settled,  that  a  mere  part  payment,  with  knowledge,  is  a 
waiver;  (o)  but  some  authorities  would  appear  to  hold  tliat  part 
payment  alone  is  sufficient  evidence  of  a  waiver,  without  proof 
of  knowledge, (/))  which  doctrine  is  inconsistent  with  other  au- 


court  said,  on  Chatficld  v.  Paxton  being  referred  to  :  "  Tlie  court  considered  those  cases 
to  have  proceeded  on  the  mistake  of  tlie  person  paying  the  money,  under  an  ignorance 
or  misconception  of  the  facts  of  the  case ;  but  here  the  defendant  had  made  the  prom- 
ise with  a  full  knowledge  of  the  circumstances,  three  months  after  the  bill  had  been 
dishonored,  and  could  not  now  defend  himself  upon  the  ground  of  his  ignorance  of  tlic 
law  when  he  made  the  promise." 

(o)  Shcrer  v.  Easton  Bank,  33  Penn.  State,  134,  where  the  notice  was  delivered  to 
the  indorser  at  the  proper  time,  but  it  stated  the  demand  to  have  been  made  two  days 
before  maturity.  Tlie  demand  was  regular.  The  note  was  for  $  1,600,  of  which  $  500 
had  been  paid.  Strong,  J.  said :  "  We  come,  then,  to  the  inquiry  whether  tiie  court 
erred  in  instructing  the  jury  that  '  there  was  evidence  of  what  dis])ensed  with  notice  to 
the  indorser,'  and  '  that,  if  they  believed  the  $  ."JOO  was  a  payment  by  the  defendant,  it 
dispensed  witli  the  necessity  of  proving  detnand  and  notice  to  him,  and  that  it  was  an 
acknowledgment  of  the  liability  created  by  the  indorsement.'  The  defendant  com- 
plains of  this  for  two  reasons  :  first,  that  it  was  an  invasion  of  the  province  of  the  jury. 
....  That  a  subsequent  promise  to  pay  the  note  by  an  indorser,  who  has  full  knowl- 
edge of  all  the  facts,  amounts  to  a  complete  waiver  of  the  want  of  due  notice,  is  well 

settled,  and  settled  as  a  matter  of  fact.    So  does  a  part  payment If,  then,  payment 

of  part  of  a  note  is,  in  law,  a  waiver  of  notice  of  dishonor,  and  not  mere  evidence  of 
notice,  the  court  in  this  case  withdrew  nothing  from  the  jury  upon  whicii  they  had  a 
right  to  pa.ss.  The  legal  effect  of  a  given  state  of  facts  is  always  for  the  court.  It  was 
submitted  to  the  jury  to  find  whether  the  defendant  made  the  payment.  If  lie  did,  the 
fact  that  lie  made  it  with  full  knowledge  of  the  circumstances  was  proved,  and  was  not 
controverted.     All  the  rest  was  a  legal  conclusion."    Ilarvcy  v.  Troupe,  23  Missis.  .538. 

{p)  In  Read  v.  Wilkinson,  2  Wash.  C.  C.  514,  Washhujton,  J.  charged  the  jury,  that 
"  The  want  of  funds  in  the  hands  of  the  drawee,  the  drawer's  payment  of  jtart  of  it, 
and  his  subsequent  acknowledgment  of  the  debt,  and  promise  to  send  fuiuls  to  take  it 
up,  arc  either  of  them  sufficient  to  dispense  with  notice  and  protest."  In  Levy  v. 
Peters,  9  S.  &  11. 125,  Tilcjhnan,  C.  J.  said  :  "  Whenever  the  drawer  acknowledges  himself 
to  be  liable  to  payment,  the  necessity  of  proving  a  demand  of  the  drawee,  and  his  refusal 
to  pay,  and  notice  to  the  drawer,  is  dispensed  with.  Because  such  acknowledgment 
carries  with  it  internal  evidence  that  tiic  drawer  knew  that  due  diligence  had  been 
vrneiX  by  the  holder,  or  even  if  it  liad  not,  that  still  the  drawer  confessed  that  he  was 
under  an  obligation  to  pay.  And  it  is  immaterial  whether  there  be  ])roof  of  an  ex- 
press promise  to  pay,  or  of  other  circumstances  from  wiiich  it  can  be  inferred  that  the 
drawer  acknowledged  himself  liable  ;  and  I  take  it  that  ]»aytnent  of  jiart  is  such  a 
circumstance.     And  there  is  good  reason  for  it.     For  why  should  part  be  paid  unless 


CH.  XIII.]  EXCUSES    FOR   WANT    OF   NOTICE.  609 

tliorities.(</)  Part  payment  may  certainly  be  explained  ;  as,  for 
instance,  by  the  fact  that  tiie  indorser  paid  it  witli  money  which 
he  liad  received  from  the  maker  for  that  express  purpose,  (r) 

5.  By  whom  the  Waiver  is  made. 

In  order  to  make  a  waiver  effectual,  it  should  be  the  act  of  the 
indorser  himself,  or  of  his  duly  authorized  agent ;  because  no 
person  can  waive  another's  rights. (s)  Tiius,  it  is  no  excuse  for 
a  failure  to  make  a  proper  demand,  as  regards  an  indorser,  that 
the  maker  told  the  holder,  a  few  days  before  maturity,  that  it 

the  payer  acknowledged  the  obligation  of  paying  the  whole?"  Curtiss  w.  Martin, 
20  111.  557,  where  the  judge,  at  Nisi  Prius,  charged  the  jury  that  the  payment  hy  the 
drawer,  if  proved,  of  any  part  of  the  bills  after  they  fell  due,  was  a  waiver  of  present- 
ment to  the  drawee  for  acceptance  and  payment,  and  notice  of  non-acceptance  and 
non-payment.  Held  correct.  See  Whitaker  v.  Morrison,  1  Fla  25,  34,  where  Haivkuis, 
J.  said  :  "  The  part  payment  of  a  note,  not  explained  or  qualified  by  any  accompany- 
ing circumstances,  will  be  held  to  be  sufficient  evidence  of  waiver  of  notice."  In  Wil- 
liams V.  Robinson,  13  La.  419,  the  drawer  of  a  bill  paid  a  part,  and  subsequently,  on 
being  asked  for  the  balance,  said  it  was  a  third  of  exchange,  and  if  he  had  examined 
it  he  would  not  have  paid  what  he  did  on  it,  adding,  that  at  the  time  the  bill  was 
given  it  was  agreed  that  it  should  be  paid  in  the  place  wliere  it  was  drawn.  Eustls,  J. 
said  :  "From  these  facts  it  would  lie  left  to  a  jury  to  infer  whether  the  partial  payment 
was  or  not  made  with  a  knowledge  on  the  part  of  the  drawer  of  the  want  of  de- 
mand, protest,  and  notice.  The  knowledge  may  be  inferred  from  the  circumstances 
attending  the  payment.  The  reason  for  the  drawer  refusing  to  pay  the  balance  due  on 
the  bill  is  placed  on  grounds  entirely  independent  of  his  knowledge  of  the  .state  of  facts 

which  would  exonerate  him We  consider  the  law  as  settled,  that  a  subsequent 

promise  to  pay  a  bill  or  note,  or  a  part  payment  thereof,  must  be  made  with  full 
knowledge  of  the  facts  of  a  want  of  due  diligence  on  the  part  of  the  holder,  but  that 
affirmative  proof  of  the  knowledge  is  not  required.  It  may  be  inferred  from  the 
promise  or  payment  under  the  attending  circumstances." 

(q)  Spurlock  v.  Union  Bank,  4  Humph  336,  where  there  was  a  part  payment  and 
an  acknowledgment  of  liability.  The  court  seem  to  have  proceeded  upon  the  ground 
partly,  that  knowledge  was  not  proved,  and  partly,  that  the  indorser  was  ignorant  of 
the  law.     See  the  remarks  of  Eustis,  J.,  cited  supra,  note  p. 

(r)  Whitaker  v.  Morrison,  1  Fla.  25.  IJmvkins,  J.  said  :  "  There  was  no  evidence 
showing  a  promise  of  payment  on  the  part  of  the  indorser,  and  the  bare  fact  of  his  de- 
livering the  money  is  not  enough.  As  to  this  the  indorser  seems  to  have  acted  as  the 
mere  agent  of  the  maker,  and  it  would  be  at  variance  with  all  ideas  of  justice,  ex- 
plained as  the  occurrence  is,  that  the  indorser,  acting  in  the  capacity  of  an  agent  sim- 
ply, should  be  rendered  subject  to  legal  liabilities,  by  the  virtual  act  of  his  principal." 
The  indorser  who  has  paid  the  whole  of  a  note  in  ignorance  of  laches,  may  recover  the 
amount  of  the  party  to  whom  he  paid  it.     Garland  v.  Salem  Bank,  9  Mass.  408. 

{s)  In  May  v.  Boisseau,  8  Leigh,  164,  180,  Tucker,  P.  said  :  "  What  is  the  principle 
on  which  notice  is  waived  1  It  is,  that  the  consequences  of  neglect  to  give  notice  may 
be  waived  by  the  person  entitled  to  take  advantage  of  them.  The  act,  then,  which  is 
to  operate  a  waiver  must  be  the  act  of  the  indorser  himself.  It  would  be  a  solecism 
»  permit  the  act  of  another  to  waive  his  riglit  of  insisting  upon  notice." 

Vol.  I.— 2  0 


610  NOTES   AND   BILLS.  [CH.  XIH 

was  no  use  to  present  the  note,  because  it  could  not  be  paid.(^) 
Such  evidence,  in  fact,  is  inadmissible. (%)  So  also  a  promise  to 
pay  made  by  one  partner,  after  dissolution,  although  binding 
upon  him,  has  been  held  not  to  bind  the  other  partners. (i?)  An 
offer  of  composition  by  the  acceptor,  not  acceded  to,  with  a  dec- 
laration in  the  presence  of  the  drawer  and  holder,  that  he,  the 
acceptor,  had  not  provided  for  them,  and  should  not  do  so,  has 
been  held  to  be  no  waiver  of  demand  and  notice. (w)  AYhere 
there  is  a  written  waiver  of  notice  on  the  back  of  the  note,  im- 
mediately followed  by  two  indorsements,  one  under  the  other,  the 
waiver  is  the  several  act  of  the  first  indorser,  and  not  that  of  the 
second. (.f)  Notice  may  be  given  to  one  joint  indorser,  and  the 
other  may  have  waived  it,  and  the  effect  of  the  waiver  by  the 
latter  is  an  acknowledgment  of  the  joint  liability. (//) 

6.    To  whom  the  Waiver  is  made. 

With  regard  to  the  person  to  whom  the  waiver  should  be  made, 
it  would  seem  to  be  settled,  that  a  promise  to  a  third  party,  uncon- 
nected with  and  uninterested  in  the  note  or  bill,  is  no  evidence 
of  waiver ;  [z)  but  a  promise  to  the  holder  himself  has  been  held 
to  enure  to  the  benefit  of  a  party  who  subsequently  takes  up  the 
paper,(a)  and  an  agreement  between  the  maker  and  the  indorser, 

[t)  Lee  Bank  v.  Spencer,  6  Met.  308. 

(«)  Pierce  v.  Whitney,  29  Maine,  188. 

(v)  Hart  V.  Long,  1  Rob.  La.  83.  See  Bank  of  Vergennes  v.  Cameron,  7  Barb.  143; 
and  supra,  pp.  144  -  146. 

{w)  Ex  parte  Bignold,  2  Mont.  &  A.  633. 

(x)  Central  Bank  v.  Davis,  19  Pick.  373. 

(y)  Shcrcr  v.  Easton  Bank,  33  Penn.  State,  134. 

(z)  Olendorfr.  Svvartz,  5  Calif.  480;  Jervey  j;.  Wilbur,  1  Bailey,  4.53.  Sec  Allwood 
r.  Hascldon,  2  id.  457  ;  Miller  v.  Hackley,  5  Johns.  375,  Antlion,  91,  su/na,  p.  599,  notey. 

(a)  Kennon  i'.  M'Rea,  7  Port.  Ala.  175  ;  Rogers  v.  Hackctt,  1  Foster,  100,  where 
Gilchrist,  C.J.  said:  "There  is  notliing  in  the  case  (Roberts  v.  Peake,  1  Burr.  323) 
cited,  which  supports  the  doctrine  that  a  promise  to  pay  a  note  made  by  the  indorser 
to  the  holder  could  not  be  given  in  evidence  by  a  subsequent  indorsee,  in  a  suit  against 
the  first  indorser.  No  reason  occurs  to  u?  why  the  i)laintift'  should  not  avail  himself 
of  the  evidence.  An  indorser  may  waive  such  a  defence,  or  not,  as  he  sees  (it.  After 
having  waived  it,  and  surrendered  it,  upon  what  jirinciple  can  he  reclaim  it  ?  Ho 
cannot  rely  upon  this  defence  as  existing,  or  as  non-existing,  as  his  caprice  or  his  in- 
terest may  dictate.  There  is  no  need  of  considering  the  (jucstion  whether  it  could  bo 
transferred  by  indorsement  to  the  plaintift',  for  negotiability  or  non-negotiability  cannot 
be  predicated  of  it.  All  that  can  be  said  of  the  matter  is,  that  the  party  has  waived 
his  defence,  and  therefore  cannot  avail  himself  of  it."  Sec  also  Potter  v.  Rayworth,  13 
East,  417,  infra,  p.  614,  note  /. 


CH.  XIII.]  EXCUSES   FOR   WANT    OF   NOTICE.  611 

whereby  the  latter  is  to  take  up  the  note,  will  enure  to  the  bene- 
fit of  an  indorsee  in  an  action  against  the  indorser,(6)  as  will  an 
engagement  between  the  maker  and  indorser  to  extend  the  time 
of  payment. (c)  And  wherever  the  indorser  takes  security  under 
such  circumstances  as  will  amount  to  a  waiver,  this  must  be  con- 
sidered, we  think,  as  a  holding  out  to  whatever  person  may  own 
the  bill,  that  he  is  the  proper  party  to  pay  it,  and  the  one  prima- 
rily liable.  (^) 

There  are  a  few  authorities  in  which  the  doctrine  that  a  prom- 
ise to  pay,  after  maturity,  with  full  knowledge  of  laches,  is  held 
not  binding  because  without  consideration. (e)  Although  this  is 
not  now  law,  yet  we  think  that  the  objection  has  certainly  some 
weight.  (/)  As  soon  as  the  holder  neglects  to  take  the  steps  re- 
quired by  law  to  fix  the  drawer  or  indorser,  from  that  moment  his 
liability  is  at  an  end.  The  contract  which  he  entered  into,  and  by 
which  he  agreed  to  be  bound,  is  broken,  and  he  is  discharged. 
How  then  can  he  be  made  liable,  except  by  a  new  and  indepen- 

(6)  Marshall  v.  Mitchell,  35  Maine,  221.  But  in  Baker  v.  Birch,  3  Camp.  107,  where 
the  acceptor,  a  few  days  before  maturity,  told  the  drawer  that  he  should  be  unable  to 
pay  the  bill,  requested  the  drawer  to  take  it  up,  and  gave  him  part  of  the  amount, 
and  the  drawer  received  the  money,  and  promised  to  take  it  up,  it  was  held  that  the 
latter  might  set  up  in  defence  a  want  of  due  presentment  and  notice  ;  but  that  the 
money  received  was  money  had  and  received  to  the  plaintiff's  use. 

(c)  Williams  v.  Brobst,  10  Watts,  111. 

(d)  In  Curtiss  i\  Martin,  20  111  557,  supra,  p.  609,  the  party  who  took  the  security 
was  held  entitled  to  avail  himself  thereof,  as  a  waiver  as  to  him. 

(e)  Lawrence  v.  Ralston,  3  Bibb,  102.  See  May  v.  Coffin,  4  Mass.  341  ;  Chase, 
C.  J.,  Beck  V.  Thompson,  4  Harris  &  J.  531  ;  Donelly  v.  Howie,  Hayes  &  J.  436, 
where  Joy,  C.  B.  said  :  "  Either  the  judges  have  been  inaccurate  in  the  language  they 
have  used,  or  they  have  been  inaccurately  reported,  or  there  has  been  a  fluctuation  of 

opinion  upon  this  subject I  confess  I  cannot  conceive  what  is  the  meaning  to  be 

attributed  to  the  word  '  waiver,'  when  used  in  a  case  like  the  present,  where  the  defend- 
ant has  been  absolutely  discharged  by  the  neglect  of  the  plaintiff.  He  may  waive  the 
communication  of  a  fact ;  but  I  do  not  understand  how  he  can  waive  the  existence  of 
the  fact.  The  law  requires  that  the  bill  should  be  presented  to  the  acceptor,  when  it 
becomes  due,  even  though  the  acceptor  be  a  bankrupt ;  and  in  my  opinion  it  would  be 
very  prejudicial  to  the  mercantile  interests  of  the  country,  were  we  to  fritter  away  the 
known  rules  of  law,  by  establishing  this  new-fangled  doctrine  of  waiver.  The  ten- 
dency of  the  modern  decisions  of  courts  of  justice  is  to  avoid  new  distinctions,  or 
extending  those  which  have  been  already  introduced  ;  and  to  decide  cases  according  to 
the  old,  well-known  rules  of  the  law.  Nor  is  there  any  pretence  for  saying  that  there 
is  a  moral  obligation  on  the  defendant,  (an  indorser,)  to  pay  this  bill,  whereby  the  prom- 
ise might  be  supported  ;  for  the  plaintiff,  by  his  own  neglect,  has  discharged  every  per- 
son, except  the  acceptor  of  the  bill." 

(/)  Mr.  Justice  Story,  Prom.  Notes,  §  275,  has  expressed  an  opinion  to  the  same 
•ffec^ 


812 


NOTES   AND    BILLS. 


[cH.  xm. 


dent  contract,  which  requires,  hke  all  other  contracts,  a  consider- 
ation to  support  it  ?  The  case  is  not  analogous  to  those  where  a 
new  promise  is  relied  upon  to  remove  a  statutory  bar  to  the  rem- 
edy, and  in  which  the  debt  itself,  in  theory,  still  exists,  while  all 
means  of  enforcing  it  are  removed ;  because  there  is  no  debt 
either  in  theory  or  in  fact.  It  is  not  unlikely  that  the  cases  by 
which  the  doctrine  was  first  established  arose  with  reference  to 
the  liability  of  drawers  of  bills,  where  the  drawer  received  the 
money  originally,  and  was,  in  fact,  morally  bound  to  pay ;  and 
the  cases  result  from  the  doctrine,  now  repudiated,  that  a  moral 
consideration  is  sufficient  to  support  an  express  promise. (g-) 
There  is  another  objection  which  has  been  urged,  but  which  rests 
upon  far  less  secure  foundation,  that  the  promise,  if  by  parol, 
is  witliin  the  statute  of  frauds,  being  a  promise  to  pay  the  debt 
of  a  third  party,  which  is  required  to  be  in  writhig,  and  is  con- 
sequently void.(//)  This  objection  has,  however,  been  held  well 
taken,  where  the  action  was  brought  on  the  promise,  and  not  on 
the  note.(t) 

It  has  been  said  that  the  doctrine  applicable  to  waiver  of 
notice  of  the  dishonor  of  bills  of  exchange  does  not  apply  to 
promissory  notes.  But  the  distinction  is  not  clearly  pointed 
out.(;) 

7.  Presumptive  Evidence  in  Reference  to  Waiver. 

In  our  discussion  of  the  subject  of  waiver,  we  have  endeav- 
ored to  confine  our  remarks  to  instances  where  it  appears,  either 
expressly  or  by  implication,  that  no  demand  had  been  made  or 
notice  given,  or  where  there  were  express  laches.  The  same 
facts  and  circumstances  are  now  to  be  considered  in  another 


(g)  In  Hopes  v.  Alder,  6  East,  16,  note,  the  counsel  for  the  plaintiff  urped  that  "the 
subsequent  promise  to  pay,  for  which  there  was  certainly  an  eciuitablc  consideration, 
put  an  end  to  any  doubt.  Gibbs,  contra,  admitted  that  this  last  objection  was  decisive." 
Cowen,  J.,  in  Tel)bctts  v.  Dowd,  23  Wend.  .379,  382,  after  citin<^  this  remark,  said  : 
"In  short,  the  force  of  the  promise  stands  on  what  is  often  called  in  the  hooks,  by  a 
latitudinary  mode  of  expression,  the  consideration  of  moral  obligation  ;  a  phrase  which 
can  never  be  judicially  understood  in  its  broad  ethical  sense,  as  it  sometimes  has  been, 
without  subverting  the  legal  notion  of  a  consideration.  It  means  no  more  than  a  legal 
liability  suspended  or  barred  in  some  technical  way  short  of  substantial  satisfaction." 

(h)  This  objection  was  expressly  overruled  in  U.  S.  Bank  v.  Southard,  2  Harrison, 
473,  wliicli  was  an  action  on  the  note  itself. 

(»■)  Peabody  r.  Harvey,  4  Conn.  119. 

(j)   Thompson,  C-  J.,  in  Agan  v.  M'Manus,  11  Johns.  180. 


CH.  XIII.]  EXCUSES   FOR   WANT   OF  NOTICE.  613 

view,  and  in  a  totally  different  connection.  There  is  a  very 
numerons  class  of  cases  on  the  subject,  how  far  a  promise  to  pay, 
or  other  circumstances,  such  as  the  acts  or  words  of  the  drawer 
and  indorscr,  go  to  prove  that  they  have  received  notice,  or  are 
evidence  that  a  proper  demand  has  been  made  and  notice  given. 
In  many  of  the  books  on  the  subject,  and  in  frequent  instances 
in  the  authorities,  the  distinction  between  the  two  classes  of 
cases  is  ignored,  and  cases  and  principles  applicable  to  the 
one  are  cited  as  authorities,  or  applied  to  the  facts,  in  the 
other.  So  that  the  law  is  in  a  state  of  much  confusion  and  un- 
certainty. (A;)  It  is  also  to  be  observed,  that,  from  the  facts  as 
reported,  there  is  frequently  much  uncertainty  whether  there 
were  laches  or  not,  and  it  is  equally  uncertain  upon  what  prin- 
ciples the  cases  were  decided.  We  will  first  consider  the  rules 
of  law  laid  down  by  the  English  authorities  with  respect  to 
presumptive  evidence  in  questions  of  this  kind  ;  and  we  may 
remark,  that,  although  the  English  law  seems,  generally,  to  be 
more  strict  in  its  requirements  of  proof  of  demand  and  notice 
than  the  American  law,  yet,  on  the  point  of  presumptive  evi- 
dence, the  former  would  appear  to  be  much  more  lax  than  the 
latter,  and  in  some  instances,  we  think,  unjustifiably  so. 

Tliere  are  several  cases  which  hold  that  a  mere  acknowledg- 

(k)  The  ablest  discussion  to  be  found  in  the  reports,  and  the  only  one  where  the 
principles  and  cases  have  been  thoroughly  treated,  is  the  masterly  opinion  of  Cowen, 
J.,  in  Tebbetts  v.  Dowd,  23  Wend.  379,  which  will  well  repay  perusal.  The  learned 
judge  said,  on  the  point  now  under  consideration,  p.  387 :  "  In  speaking  of  this 
head,  I  shall  hereafter,  for  the  sake  of  brevity,  call  it  '  waiver,'  and  I  must  again 
repeat,  that  it  is  entirely  distinct  from,  and  founded  on,  a  state  of  fiicts  opposed  to 
another  ground,  on  which  I  think  the  judgment  of  the  court  below  still  more  clearly 
sustainable  than  that  of  waiver.  I  mean  the  ground  that,  where  no  laches  appear  in 
proof,  the  promise,  or  other  equivocal  act  of  the  drawer  or  indorser,  shall  be  received  as 
prima  facie  evidence  that  there  were  no  laches ;  that  presentment,  protest,  notice,  &c. 
were  in  fact  made  or  given,  the  promise,  &c.  thus  coming  in  place  of  the  ordinary 
direct  proof  of  those  facts.  It  is  necessary  to  adhere  with  great  strictness  to  the  dis- 
tinction, inasmuch  as  all  the  treatises  I  have  seen  on  bills  of  exchange  or  notes  con- 
found waiver  with  the  opposite  (jrou))d.  They  state  both  these  grounds  together,  as  if 
they  belonged  to  the  same  head,  often  citing  cases  in  respect  to  one  ground  which 
belonged  to  the  other;  thus  introducing  a  degree  of  confusion  into  this  branch  of  the 
law  to  which  the  decisions  give  no  countenance  whatever ;  nay,  to  which  they  stand 
directly  opposed.  And  this  brings  me  to  the  second  general  head,  —  presumptive  evi- 
dence." As  to  the  latter  remark  concerning  the  authorities,  we  shall  see  that  the 
learned  judge  is  incorrect,  because  we  find  the  courts,  even  in  the  same  jurisdiction, 
applying  the  principles  applicable  to  presumptive  evidence  at  times,  and  again  decid- 
?ng  in  a  way  which,  by  no  method,  can  be  reconciled  with  them. 

VOL.  I.  52 


61-1  NOTES   AND   BILLS.  [CH.  Xm. 

meiit  ol  liability,  or  a  promise  to  pay,  after  maturity,  by  a 
dra^ver  or  indorser,  is  sufficient  -evidence  by  which  a  jury  may 
infer  protest,  demand,  or  notice, (/)  and  also  a  presentment  at  the 

(/)  Wood  V.  Brown,  1  Stark.  217,  where  the  phiintifF,  instead  of  proving  notice,  &c., 
gave  in  evidence  a  letter  of  the  defendant,  a  drawer  and  indorser,  stating  that  the  bill 
would  be  paid  before  the  next  term.  Held  sufficient.  Taylor  v.  Jones,  2  Camp.  105, 
where  the  indorser  of  a  note  two  years  after  maturity  promised  to  pay,  but  asked  for 
further  time.  Held  sufficient  evidence  of  presentment  and  notice.  Gibbon  v.  Coggon, 
id.  188,  where  the  drawer  of  a  foreign  bill,  on  demand  being  made,  said  that  his  affairs 
were  much  deranged,  but  that  he  would  be  glad  to  pay  as  soon  as  his  accounts  with  his 
agent  were  cleared.  Held  evidence  of  protest  and  notice.  Lord  Ellenhorough  said : 
"  By  the  promise  to  pay,  he  admits  his  liability ;  he  admits  the  existence  of  everything 
which  is  necessary  to  render  him  liable.  When  called  upon  for  payment  of  the  bill, 
he  ought  to  have  objected  that  there  was  no  protest.  Instead  of  that,  he  promises  to 
pay  it.  I  must,  therefore,  presume  that  he  had  due  notice,  and  that  a  protest  was  regu- 
larly drawn  up  by  a  notary."  Greenway  v.  Hindley,  4  Camp.  52,  where  the  evidence 
of  presentment,  protest,  and  notice  of  a  foreign  bill  was  a  statement  by  one  of  the 
drawers  that  the  bill  was  regular,  that  it  was  due  from  him  and  liis  partner,  and  that 
he  had  come  to  make  art  arrangement  for  its  payment,  with  interest.  Presentment, 
protest,  and  notice  were  alleged  in  the  declaration.  Lundie  v.  Robertson,  7  East,  231, 
3  J.  P.  Smith,  225,  where  the  indorser  of  a  bill  promised  to  pay  it  if  the  holder  would 
call  again  with  the  account.  Held  evidence  of  presentment  and  notice.  Potter  v. 
Rayworth,  13  East,  417,  where  an  iudorser's  promise  to  pay  to  a  subsequent  indorser 
was  held  evidence  of  notice,  in  an  action  by  an  intermediate  indorser.  Lord  Ellen- 
horough, C.  J.  said  :  "  Whether  the  promise  to  pay  was  made  to  the  ])laintiff,  or  to  any 
other  party  who  held  the  note  at  tlie  time,  it  was  equally  evidence  that  the  defendant 
was  conscious  of  iiis  liability  to  pay  tlie  note,  which  must  be  because  he  liad  due  notice 
of  the  dishonor."  See  Patterson  v.  Becher,  6  J.  B.  Moore,  319,  supra,  p.  G03,  note  s; 
Hicks  V.  Duke  of  Beaufort,  4  Bing.  N.  C.  229,  5  Scott,  598,  where  tlie  drawer  of  a  bill 
said:  "  If  tlie  acceptor  does  not  pay,  I  must;  but  exhaust  all  your  influence  with  the 
acceptor  first."  The  drawer  afterwards  directed  the  holder  to  raise  money  on  his  life  and 
that  of  the  acceptor,  but  the  negotiation  was  afterwards  broken  ofT.  Held  evidence  by 
which  the  jury  might  or  might  not  infer  notice.  Parke,  B.,  Burgh  v.  Legge,  5  JL  &  W. 
418,  419  i  Campbell ».  Webster,  2  C.  B.  258,  where  letters  from  the  drawer  of  a  foreign  bill 
containing  an  admission  of  liability,  or  a  promise  to  pay,  though  conditional  as  to  the 
mode  of  payment,  were  held  presumptive  evidence  of  protest  and  notice.  See  Metcalfe 
7).  Richardson,  11  id.  1011,  where  the  drawer  of  a  bill  remarked  to  the  holder's  clerk  the 
day  after  maturity,  —  the  latter  having  said  that  tlie  bill  had  been  duly  presented,  and 
that  the  acceptor  could  not  pay  it, —  that  he  would  see  the  holder  about  it.  Held,  that 
it  was  properly  left  to  the  jury  to  infer  from  tlie  conversation  that  the  drawer  had  duo 
notice.  In  Norris  v.  Salomonson,  4  Scott,  257,  the  only  evidence  of  notice  to  the 
drawer  was  the  tcBtimony  of  a  witness  that  the  defendant  said  to  him,  in  reply  to  an 
inquiry  wiiether  he  was  aware  or  not  that  tiie  bill  had  l)een  dishonored,  "  Yes,  I  have 
had  a  very  civil  letter  on  the  sulijett  from  Mr.  Gunnel!,  an  internKiliate  indorsee,  and  I 
will  call  arid  arrange  it."  Held  suflieient  evidence  of  notice.  Brownell  v.  Bonney,  1  Q. 
B.  39,  where  the  drawer  of  a  bill  was  told  timt  a  subseciuent  indorser  had  been  .sued  on 
the  hill,  and  that  as  he,  the  defendant,  had  received  the  cash,  and  knew,  the  day  before 
maturity,  that  the  hill  would  not  be  i)aid,  he  ought  to  ])ay  it.  The  defendant  rejdied, 
that  lie  siiould  not  avail  himself  of  the  iiiforiinility  of  tlic  notice,  hut  would  pay  the 
bill.     Held  evidence  hy  which  the  jury  rniglit  infer  due  notice.     Parka,  B.,  Burgh  v- 


CH.  XIII.]  EXCUSES   FOa   WANT   OF   NOTICE.  G15 

place  where  the  bill  is  payable. (w)  Tlie  reason  for  this  is,  that 
it  is  an  admission  against  interest ;  that  it  is  highly  improbable 
that  a  party,  knowing,  as  must  be  supposed,  his  legal  liability, 
and  what  will  constitute  a  discharge  of  that  liability,  should 
admit  it,  or  promise  to  pay  the  debt,  unless  all  the  proper  meas- 
ures had  been  taken  to  cause  that  liability  to  attach.  Among 
otlier  circumstances  which  have  been  held  to  be  presumptive 
evidence  of  demand  and  notice  are  part  payment,  without  ob- 
jection to  any  want  of,  or  informality  in,  the  presentment  and 
notice ;  (w)    an    offer   to   pay  a   iDart,(o)    or    to    pay   by   instal- 


Legge,  5  M.  &  W.  418,  419.  In  Jones  v.  O'Biie.f,  C.  B.  1854,  26  Eng.  L.  &  Eq.  283, 
the  proof  was,  thiit  the  witness  could  not  state  positively  that  he  had  given  i)roper 
notice,  but  produced  a  note  from  the  defendant,  a  drawer,  saying  that  he  would  see  the 
bill  arrajiged.  The  latter  subsequently  promised  to  give  a  judgment  for  the  amount. 
The  defendant  testified  that,  to  tlic  best  of  his  belief,  he  had  no  knowledge  of  dishonor 
until  a  fortnight  after  maturity.  The  judge  told  the  jury  that  they  must  arrive  at  the 
conclusion  that  notice  was  given  the  day  of  maturity  ;  that  this  might  be  proved  by  a 
promise  to  pay  the  bill ;  but  if  they  believed  the  defendant,  that  they  should  find  for 
him.  A  verdict  for  the  plaintiff  was  sustained.  Chapman  v.  Annett,  1  Car.  &  K.  552, 
seems  opposed  to  these  cases.  There  was  no  evidence  of  notice,  but  the  defendant 
had  said  that  he  would  try  to  get  the  acceptor  to  pay  the  bill ;  that  he  woukl  call  and 
have  the  matter  arranged ;  and  that  he  would  have  the  bill  taken  up.  There  was  a 
book  kept  by  the  plaintiff,  in  which  entries  of  notices  were  made.  The  book  was  not 
produced.  Pollock,  C.  B.,  instead  of  leaving  the  question  to  the  jury,  acknowledged 
that  the  defendant's  conversation  amounted  to  a  promise  to  pay ;  but  said  he  was  of 
opinion  that  there  was  no  notice,  and  directed  a  verdict  for  the  defendant.  He  also 
said  that  it  was  for  the  court  to  say  whether  the  promise  amounted  to  a  waiver.  In 
an  action  by  a  second  indorser  against  the  drawer,  ])roof  that  the  defendant  iiad  fur- 
nished the  firet  indorsee  with  funds  to  pay  the  bill  and  costs,  under  a  judge's  order  for 
a  stay  of  proceedings,  will  not  dispense  with  proof  of  notice.  Holmes  v.  Staines,  3 
Car.  &  K.  19. 

(m)  Hodge  v.  Fillis,  3  Camp.  463,  an  action  against  the  acceptor. 

(n)  Vaughan  v.  Fuller,  2  Stra  1246.  The  following  is  the  report  of  this  case  :  "In 
an  action  upon  a  promissory  note  by  the  indorsee  against  an  indorser,  it  was  jiroved 
that  the  defendant  had  paid  part  of  the  money.  And  Chief  Justice  Lee  held  that  suffi- 
cient to  dispense  with  the  proving  a  demand  upon  the  maker  of  the  note."  Ilorford  v. 
Wilson,  1  Taunt.  12. 

(o)  The  authorities  on  this  point  are  in  conflict.  In  Dixon  v.  Elliott,  5  Car.  &  P. 
437,  the  bill  was  shown  to  the  defendant,  an  indorser,  ;uid  inquiries  were  made  for  the 
acceptor  and  drawer.  The  indorser  said  if  the  plaintiff  would  take  10«.  on  the  pound, 
he  would  secure  it  to  them.  The  offer  does  not  appear  to  have  been  accepted.  Parle, 
J.  held  the  evidence  sufficient  to  dispense  with  proof  of  dishonor.  In  Margetson  v. 
Aitken,  Danson  &  L.  187,  3  Car.  &  P.  338,  Lord  Tentaxlen,  C.  J.  and  Bayleij,  J.  held 
that,  if  the  indorser  offers  to  pay  the  holder  8s  on  the  pound,  on  the  amount,  this  dis- 
penses with  proof  of  notice.  The  offer  was  rejected.  Contra,  Standage  v.  Creighton, 
5  Car.  &  P.  406,  wlierc  there  was  evidence  that  notice  had  been  sent  addressed  to  the 
defendant,  an  indorser  of  a  bill,  at  two  places,  but  there  was  no  evidence  that  he  lived 


316  NOTES   AND  BILLS.  [CH.  XIH. 

meats ;(/?)  service  of  notice  to  produce  at  the  trial  the  letter 
containing  notice  of  dishonor  uncomplied  with  ;  (q)  objecting  to 
payment  upon  other  grounds  than  laches  in  presentment  and  no- 
tice. (/•)  Some  of  the  cases  have  almost  gone  so  far,  that  it  would 
seem  that  the  only  safe  course  for  an  indorser  or  drawer,  when 
payment  is  demanded  of  him,  would  be  to  expressly  deny  both 
presentment  and  notice.  Thus,  for  instance,  a  verdict  against 
the  drawer  of  a  bill  was  sustained,  where  the  only  evidence  of 
notice  was,  that  the  defendant,  two  days  after  maturity,  sent  a 
person  to  the  plaintiff  to  say  that  he  had  been  defrauded  of 
the    bill,  and    should    defend  any  action   upon  it. (5)     Whether 


in  cither.  Proof  that  the  defendant's  attorney  liad  offered  to  pay  £  30  on  the  bill, 
which  was  for  £  100,  and  to  secure  the  residue  by  warrant  of  attorney,  was  held  not  to 
be  sufficient  to  dispense  with  proof  of  notice.  The  offer  docs  not  appear  to  have  been 
accepted.  Lord  Denman,  C.  J.  said  ;  "  I  think  that  that  is  not  sufficient  to  dispense 
witli  proof  of  the  notice  of  dishonor.  The  defendant  might,  if  time  had  been  given 
him,  have  been  willing  to  have  waived  any  objection  with  respect  to  notice  of  dis- 
honor." In  Cuming  v.  French,  2  Camp.  106,  note,  the  drawer,  on  being  arrested, 
offered  as  a  compromise  to  give  his  bill  at  one  or  two  months.  His  offer  was  re- 
jected. Held  not  to  obviate  the  necessity  of  demand  and  notice.  Lord  EHenhoromjh 
said  :  "  This  offer  is  neither  an  acknowledgment  nor  a  waiver,  to  obviate  the  necessity 
of  expressly  proving  notice  of  the  dishonor  of  the  bill.  He  might  have  offered  to  give 
his  acceptance  at  one  or  two  months,  althougli,  being  entitled  to  notice  of  the  dis- 
honor of  the  bill,  he  had  received  none,  and  altiiough,  upon  this  compromi.se  being 
refused,  he  meant  to  rely  upon  the  objection.  If  the  plaintiff  accepted  the  offer,  good 
and  well ;  if  not,  things  were  to  remain  on  the  same  footing  as  before  it  was  made." 

(p)  Croxen  v-  Worthen,  5  M.  &,  W.  5,  an  action  against  tlic  maker  of  a  note  ])ayablo 
at  a  specilied  place.  There  was  no  evidence  of  a  presentment  there,  whicii  was  alleged 
in  the  declaration,  but  the  defendant  had  promised  to  i)ay  the  note  by  instalments. 
Alderson,  B.  said  :  "  The  defendant  is  supposed  to  know  the  law  ;  he  knows,  therefore, 
that  he  is  not  liable,  unless  the  note  has  l)een  duly  presxinted.  Witli  tiiat  knowledge, 
he  undertakes  to  pay  it.  Is  not  that  evidence  for  the  jury  that  lie  knows  it  has  been 
presented  1 "  Gunson  v.  Met/.,  1  B.  &  C.  193.  2  Dow.  &  K.  33-4,  an  action  against  the 
drawer  of  a  bill.  An  agreement  between  the  drawer  and  a  prior  indorser.  reciting  that 
the  defendant  had  drawn,  among  others,  the  bill  in  question,  that  it  was  overdue,  and 
ought  to  be  in  the  hands  of  the  prior  indorser,  and  that  the  latter  sliould  take  the 
money  due  liim  on  the  bill  by  instalments,  was  held  evidence  of  notice. 

(q)  See  the  cases  cited  infra,  note  s.     See  Campbell  v.  Webster,  2  C.  B.  2.58. 

(r)  See  the  cases  cited  infra,  note  s.     See  Cam|)bell  v.  Webster,  2  C.  B.  258. 

(«)  Wilkins  v.  Jadis,  1  Moody  &  R.  41,  where  Lord  Tcnicrden,  C.  J.  said  :  "  It  will 
be  a  question  for  the  jury  whether  the  defendant  had  received  notice  from  the  plaintiff, 
or  some  party  to  the  bill.  They  certainly  must  bo  satisfied  that  notice  was  given ; 
mere  knowledge  of  the  dishonor  is  not  suilicient.  But  is  there  not  evidence  of  notice? 
Tiie  communication  that  any  action  will  be  defended  is  not  put  on  the  giound  of  want 
of  notice,  but  of  fraud,  and  at  that  time  the  defendant  knew  the  holders.  How  was  ho 
likely  to  know  that  fact,  unless  by  having  received  notice  ?  It  is  a  question  of  fact  for 
the  jury,  whether  he  had  so  or  not;  and  their  verdict  will  be  given  accordingly  "     In 


I 


CH.  XIII.]  EXCUSES   FOR   WANT    OF   NOTICE.  617 

a  conditional  ofifer  of   payment,  by  way  of  compromise,  which 
has  not  been  accepted,  is  evidence  of  demand  and  notice,  seems 

Eoberts  v.  Bradshaw,  1  Stark.  28,  the  plaintiflTs  clerk  swore,  that  on  the  day  of  matu- 
rity the  phiintiff  gave  him  two  papers  to  compare  with  each  other,  one  of  whicli  he  pro- 
duced, purporting  to  be  a  notice  of  dishonor  of  the  bill.  He  stated  tiiat,  the  day  after 
he  compared  tiie  papers,  he  carried  a  letter  from  the  plaintiff  to  the  defendant.  This 
not  being  heli  sufficient  evidence  of  notice,  the  plaintiff  then  proved  service  of  a  notice  ou 
the  defendant,  calling  on  him  to  produce  a  letter  from  the  plaintiff,  giving  notice  of  the 
disiionor  of  tiie  bill.  A  verdict  for  tlie  plaintiff  on  the  above  facts  was  sustained.  Lord 
EUenborowjh  said :  "  1  tiiinlv  certainly  tiiat  there  is  a  looseness  in  this  evidence,  and  you 
may  afterwards  move  the  court  upon  it.  Supposing,  however,  tliat  the  paper  delivered 
had  been  a  perfect  blank,  or  contained  matter  wholly  unconnected  with  the  dishonor 
of  the  bill,  you  might  have  produced  it,  and  shown  the  fact  to  be  so,  since  it  is 
evident  wliat  letter  was  the  object  of  the  plaintiff's  notice.  This  is  the  first  time  the 
identity  of  such  a  letter  has  been  so  minutely  criticised,  and  the  proof  might,  in 
many  instances,  be  attended  with  great  difficulty ;  as  where  letters,  after  being 
written,  are  placed  upon  the  table,  it  might  afterwards  be  exceedingly  difficult  to 
identify  them  with  those  afterwards  put  into  the  post-office."  In  the  ensuing  term, 
the  court  refused  a  rule  nisi  for  a  new  trial.  In  Booth  r.  Jacobs,  3  Nev.  &  M. 
351,  an  action  against  the  drawer,  on  two  bills,  one  drawn  on  Fenton  and  the  other 
on  Phillips,  a  verdict  for  the  plaintiff  was  sustained,  on  the  ground  that  the  follow- 
ing letter,  written  six  days  after  maturity,  was  evidence  of  due  notice  of  both 
bills.  "  Your  letter  this  day  came  to  hand.  We  were  rather  surprised  at  the  latter 
part  of  your  letter,  wlierein  you  state  you  would  take  proceedings  against  us.  We 
fully  expected  that  Phillips's  bill  would  have  been  paid.  It  will  be  impossible  for  me 
to  go  out  of  town  to  settle  our  accounts  till  after  Christmas,  wlien  wc  will  remit  you 
some  cash.  Trade  is  at  a  stand  still  in  London  at  present.  We  have  been  doing 
very  little  business  for  these  last  three  weeks,  as  we  are  determined  not  to  give  any 
more  credit,  having  had  such  severe  losses  lately.  We  have  taken  up  £  100  of  return 
bills  of  Mr.  Fenton's,  besides  other  bills  on  other  shops  which  were  returned,  which 
makes  us  short  of  cash  at  this  present  time.  I  have  called  this  day  on  Mr.  Phillips 
about  his  bill.  He  was  not  at  home.  I  will  call  again  to-morrow.  You  may  make 
yourselves  very  eas}'  about  what  we  owe  you.  I  will  write  to  you  again  in  a  day  or 
two.  Law  expenses  do  neither  party  any  good."  It  is  somewhat  difficult  to  see  what 
evidence  of  due  notice  of  both  bills  is  contained  in  this  letter.  In  Bell  v.  Frankis,  4 
Man.  &  G.  446,  5  Scott,  N.  R.  460,  the  defendant,  a  drawer,  told  the  witness  he  ex- 
pected to  receive  by  post  a  notice  of  dishonor  of  the  bill  ;  and  afterwards  gave  him  a 
letter  which  he  had  received  by  mail,  and  requested  him  to  negotiate  a  renewal  of  the 
bill.  The  letter,  which  was  in  the  plaintiff's  hands,  was  not  produced  at  the  trial. 
Held  evidence  of  due  notice,  but  a  verdict  for  the  defendant  was  not  disturbed.  In 
Curlewis  ».  Corfield,  1  Q.  B.  814,  1  Gale  &  D.  489,  the  plaintiff  proved  that  he  sent  a 
letter  to  the  drawer,  which  was  put  into  the  letter-box  of  the  latter,  an  attorney,  at  his 
office.  A  service  of  notice  on  the  defendant,  calling  on  him  to  produce  a  letter  sent  to 
him  that  day,  containing  notice  of  dishonor  of  the  bill,  was  also  proved  ;  and  the  de- 
fendant failed  to  produce  it.  After  this  time  the  defendant  told  the  plaintiff's  attorney 
that  the  bill  had  not  been  presented  in  due  time,  saying  nothing  about  notice.  A 
verdict  for  the  plaintiff  was  sustained,  on  the  ground  that  the  above  facts  were 
evidence  of  due  notice.  Lord  Denman,  C  J.  said  :  "  Taking  the  whole  of  this  case 
together,  I  think  there  was  evidence  to  go  to  the  jury,  The  plaintiff"  proved  tliat  some 
letter  was  '^ut  into  the  defendant's  box  on  Sept.  28th ;  and  that  notice  to  jiroduce,  not 
52* 


618 


NOTES   AND   BILLS. 


[CH.  XHL 


to  be  unsettled ;  the  authorities  being,  as  has  been  seen,(^)  in  a 
state  of  conflict.  With  regard  to  the  person  to  whom  the  prom- 
ise or  acknowledgment  is  to  be  made,  it  has  been  held,  as  has 
been  remarked, («<)  that  a  promise  to  a  subsequent  party  enures 
to  the  benefit  of  an  intermediate  party  who  has  taken  up  the 
paper.  The  courts  in  England,  in  the  late  cases,  seem  to  show  a 
disposition  to  shift  from  the  position  of  waiver  to  that  of  pre- 
sumptive evidence,  and  it  is  not  impossible  but  that  they  may 
have  abandoned  the  former  doctrine. (y) 

Many  of  the  American  authorities  are  so  far  inconsistent  with 
the  English  cases  which  we  have  just  examined,  that  it  is  not 
certain  whether  the  courts,  in  some  instances,  recognize  the  doc- 
trine of  presumptive  evidence  at  all.  This  may  have  arisen 
from  confounding  the  distinction  between  waiver  and  presump- 
tive evidence,  or  because  that  distinction  does  not  seem  to  have 
been  presented  for  consideration. (i^;)     In  some  cases,  the  courts 


complied  with,  must  have  some  effect.  To  this  is  added  the  conversation  with  the 
plaintiff's  attorney,  in  which  the  defendant  placed  his  defence  on  a  different  ground 
from  that  of  omission  to  give  notice  of  dishonor.  The  case,  therefore,  is  like  Wilkins 
V.  Jadis,"  I  Moody  &  II.  41,  sMjora.  Patteson,  J.  said,  that,  witliout  tiie  conversation,  tho 
e\-idcnce  would  not  probably  be  sufficient.  Sec  Brett  v.  Levett,  13  East,  213,  where 
want  of  notice  to  the  drawer  of  a  bill  due  Jan.  28th,  he  having  become  bankrupt  on  Dec. 
28th,  was  supplied  by  evidence  that  he  said,  on  a  day  subsequent  to  tlie  latter  date,  on 
being  asked  by  the  plaintiff  whctiier  the  bill  would  be  paid,  "  No,  it  will  come  back." 

(t)  See  the  cases  cited  supra,  p.  616,  note  s. 

(u)  Potter  V.  Kayworth,  13  East,  417,  supra,  p.  614,  note  I;  Gunson  v.  Metz,  1  B. 
&  C.  193,  supra,  p.  616,  note/). 

(v)  Thus,  in  Ilioks  v.  Duke  of  Beaufort,  4  Bing.  N.  C.  229,  sirpra,  p.  614,  note  /,  tho 
promise  was  certainly  as  clear  as  in  the  case  of  Ro;;ers  v.  Stevens,  2  T.  II.  713,  suj>ra,  p. 
598,  note  h,  and  other  earlier  cases.  Inasmuch  as  it  was  a  question  of  notice,  tlie  point 
whether  the  defendant  knew  whether  he  had  received  it  or  not  might  have  been  raised. 
But  the  jury  were  directed  simply  to  find  whether  there  iiad  been  notice  or  not.  So  in 
Brownell  v.  Bonney,  1  Q.  B.  39,  and  in  Jones  v.  O'Brien,  C.  B.  18.54,  26  Eng.  L.  & 
Eq.  283,  cited  supra,  p.  614,  note  /,  from  the  evidence,  there  certainly  was  ground  to 
contend  that  there  iiad  been  actual  laches,  and  knowledge ;  but  the  court  decided  on 
the  ground  of  ])resumptivc  evidence,  and  not  ujjon  that  of  waiver.  Iloulditcli  v.  Canty, 
4  Bing.  N.  C.  411,  seems  to  have  been  decided,  however,  on  the  ground  of  waiver.  Sco 
tlic  remarks  of  Joy,  C.  B.,  cited  supra,  p.  611,  note  e.  It  is  somewhat  singular  that  tho 
Cliicf  Baron  should  characterize  waiver  as  "  this  new-fangled  doctrine";  because  tho 
fluctuation  appears  to  be  from  that  doctrine,  which  is  clearly  laid  down  l)y  the  earlier 
cases,  to  that  of  presumptive  evidence,  wiiich  is  later. 

{w)  Tiiornton  v.  Wynn,  12  Wheat.  183,  seems  hardly  rcconcibible  with  liie  English 
cases.  Tho  court  below  admitted  the  following  evidence  as  competent  to  suppoit  tho 
action  against  an  indorscr  of  a  note,  without  further  proof  of  demand  and  notice.  The 
defendant,  on  demand  being  made  of  him,  said  lie  knew  the  maker  had  not,  and  was 
not,  to  pay  the  note;  that  it  was  his  concern  ah)ne,  and  tliat  the  maker  hiul  noliiing  to 


CH.  XIII.]  EXCUSES   FOR   WANT   OF  NOTICE.  619 

seem  unwilling  to  carry  out  the  doctrine  to  such  an  extent  as 
is  done  by  the  English  authorities.  Thus  there  is  certainly 
ground  to  contend,  on  these  authorities,  that,  if  an  indorser 
takes  security  after  maturity,  this  is  evidence  of  demand  and 


do  with  it.  Washington,  J.,  p.  188,  admits  that  "these  dedarations  amounted  to  aa 
unequivocal  admission  of  tlie  original  liability  of  the  defendant  to  jjay  the  note."  This 
would  seem  suffieicnt  to  come  within  the  English  authorities  ;  but  the  court  decided 
that  the  defendant  could  not  be  held,  because  there  was  no  proof  of  knowledge  of 
laches  at  the  time  the  declarations  were  made.  In  Davis  ii.  Gowen,  17  Maine,  387,  the 
only  proof  of  demand  and  notice  was,  that  notices  for  the  maker  and  indorser  were 
deposited  in  the  post-office  on  the  day  of  maturity  ;  all  the  parties  residing  in  the  same 
town.  The  defendant  told  the  plaintiff's  attorney  that,  if  he  would  not  sue  the  note, 
he  would  immediately  see  it  paid.  Suit  was  accordingly  delayed,  and  the  defendant 
afterwards  made  similar  promises.  Held,  that  the  court  should  have  instructed  the 
jury  that  the  action  could  not  be  maintained,  because  the  facts  do  not  show  knowledge 
of  laches.  See  Grain  v.  Colwell,  8  Johns.  384,  where  the  indorser  promised  "  to  turn 
out  notes."  The  plaintiff  refused  to  receive  them,  and  subsequently  the  defendant  re- 
fused to  deliver  them.  Beekman  v.  Connelly,  cited  16  Johns.  154,  where  it  was  held 
that  mere  proof  of  a  promise  to  pay,  without  evidence  of  knowledge  of  laches,  does  not 
dispense  with  proof  of  regular  notice.  Trimble  v.  Thome,  16  Johns.  152,  where  the 
notice  to  the  indorser  was  held  insuftieient,  because  it  was  deposited  in  the  post-office 
of  the  town  in  which  he  lived.  The  defendant  had  called  on  the  plaintiff's  attorney, 
admitted  his  liability,  and  promised  to  pay  the  note,  offering  to  pay  part  in  cash  and 
the  balance  by  notes.  The  proposition  was  acceded  to,  but  the  defendant  neglected  to 
carry  it  out,  and  suit  was  then  brought.  The  plaintiff  was  nonsuited,  for  not  proving 
knowledge  of  laches.  With  regard  to  this  case  it  may  be  remarked,  that  the 
presumption  in  fiict,  though  not  in  law,  is,  that  a  party  would  be  more  likely  to 
receive  a  drop-letter  than  if  it  had  been  mailed  to  him  from  a  distant  place.  The 
defendant  might  also  be  supposed  to  know  wliether  he  had  received  notice  or  not. 
This  case,  however,  as  will  be  seen,  has  been  overruled,  and  its  authority  frequently 
denied.  It  is  affirmed  in  Jones  v.  Savage,  6  Wend.  658,  where  the  drawer,  after  suit, 
requested  a  delay  of  proceedings,  and  after  some  negotiation  the  defendant  j)romised 
to  make  an  arrangement  satisfactory  to  the  holder.  The  defendant  also  included  the 
amount  of  the  holder's  claim,  in  an  account  of  his  creditors,  on  an  application  for  his 
discharge  in  insolvency.  Held  insufficient  to  charge  the  defendant,  without  proof  of 
knowledge.  Barkalow  v.  Johnson,  1  Harrison,  397,  where  there  was  some  slight  evi- 
dence of  demand  and  notice.  The  defendant  after  suit  admitted  his  indorsement  and 
his  liability,  and  offered  to  pay  part  in  cash  and  the  balance  by  note.  The  propositions 
were  not  acceded  to.  Held  not  sufficient  to  support  the  action,  principally  because  no 
knowledge  of  laches  was  proved.  U.  S.  Bank  v.  Southard,  2  Harrison,  473,  where  a 
promise  to  pay  the  note  by  an  indorser  as  soon  as  he  could  was  held  insufficient  to 
support  an  action,  on  the  ground  of  want  of  knowledge.  In  Sussex  Bank  v.  Bald- 
win, 2  Harrison,  487,  the  demand  was  regular,  and  there  was  evidence  that  the  notice 
had  been  mailed  the  next  day  after  dishonor,  but  it  was  not  proved  to  have  been  put 
in  the  office  in  time  for  the  mail  of  that  day.  The  defendant  had  admitted  that  he 
had  received  a  notice  through  the  bank,  and  had  requested  the  plaintiff  twice  to  renew 
the  note.  Held  not  sufficient  evidence  to  maintain  the  action.  In  New  Orleans  Bank 
V.  Harper,  12  Rob.  La.  231,  Lacoste  v.  Harper,  3  La.  Ann.  385,  the  notice  was  held 
bad  because  it  was  not  directed  to  the  post-office  nearest  to  the  residence  of  the  drawer. 


U-0  NOTES   AND    BILLS.  [CH.  XHI. 

notice ;  for  why  should  a  person  take  these  steps  to  secure 
himself,  unless  his  liability  actually  existed  ?  But  the  contrary 
appears  to  have  been  decided. (a;)  There  are  cases  in  which 
the  courts  recognize  the  English  law,  but  deny  its  authority  ; 


A  subsequent  promise  to  pay  by  the  latter  was  held  insufficient  to  support  the  action. 
So  Gleun  r.  Thistle,  1  Rob.  La.  572,  where  notice  was  held  defective  because  the  post- 
office  was  used  as  a  means  of  deposit.  There  was  also  evidence  that  the  defendant 
usually  got  his  letters  there,  and  of  a  promise  to  pay.  The  plaintiff  was  nonsuited  be- 
cause no  knowledge  was  proved.  In  Harris  v.  AUnutt,  12  La.  465,  the  notarial  certifi- 
cate of  notice  was  held  insufficient  on  account  of  informality.  When  payment  was 
demanded  of  the  indorser,  he  promised  to  go  to  his  immediate  indorser  and  arrange  the 
note.  The  prior  indorser,  who  was  also  a  defendant,  offiired  to  give  other  notes  for  the 
amount.  The  subsequent  indorser  said  that  he  would  see  that  the  prior  one  gave  the 
notes.  A  judgment  for  the  plaintiff  was  reversed,  and  a  nonsuit  entered  for  want  of 
proof  of  knowledge.  So  in  Tickner  v.  Roberts,  11  La.  14,  the  protest  was  held  no 
evidence  of  demand,  because  not  dul}^  authenticated.  The  defendant,  a  drawer,  prom- 
ised to  pay.  The  drawer  was  discharged  for  want  of  evidence  of  knowledge  of  laches. 
In  Laporte  v.  Landry,  17  Mart.  La.  359,  16  id.  125,  the  notice  was  held  bad,  because 
deposited  in  the  post-office  where  the  indorser  lived.  The  defendant  offered  to  indorse 
notes  of  tlie  same  maker  for  the  same  amount,  but  the  holder  wished  him  to  give  his 
own  note.  The  plaintiff  was  nonsuit.  In  Bank  of  U.  S.  v.  Leathers,  10  B.  Mon.  64, 
the  evidence  of  presentment  and  notice  was  the  notarial  certificate  of  protest,  which 
was  held  no  evidence  of  the  facts,  because  the  instrument  was  a  note.  A  promise,  ten 
years  after  maturity,  to  pay  the  note,  was  held  insufficient,  there  being  no  proof  of 
knowledge  of  laches.  It  may  be,  however,  that  in  some  of  the  above  cases  there  was 
actual  laclics ;  but  this  fiict  is  neither  given  by  the  report  of  the  cases  nor  adverted  to  in 
the  opinions. 

(x)  Otsego  Co.  Bank  v.  Warren,  18  Barb.  290,  where  the  notarial  certificate  of  de- 
mand on  the  acceptor  of  an  inland  bill  was  held  defective  for  informality.  It  does  not 
appear  whether  notice  was  given  or  not.  Tower  v.  Durell,  9  Mass.  332,  where  tiiere  does 
not  appear  to  be  any  other  evidence  of  demand.  No  facts  are  reported  wliich  are  in- 
consistent with  the  fact  that  the  demand  and  notice  miglit  have  been  regular  in  both 
cases.  The  courts  decided  them  on  the  ground  of  waiver,  and  did  not  notice  the  one 
now  under  consideration.  With  regard  to  conditional  promises,  not  accepted,  it  will  be 
seen  that  in  some  of  the  cases  cited  supra,  p.  618,  note  i;,  there  were  such  instances,  and 
they  were  noticed  in  the  ojjinions  of  tlie  court.  In  Bank  of  Vcrgennes  v.  Cameron, 
7  Barb.  143,  an  action  against  the  indorser  of  a  foreign  bill,  a  niemornnduni  at  the  foot 
of  tlic  draft,  made  I)y  the  notary  and  signed  witli  his  initials,  stating  tlie  protest,  the 
mailing  of  the  notices  to  the  drawer  and  indorscrs,  and  tlie  place  to  wliich  tiicy  were 
sent,  was  held  no  evidence  of  notice,  even  in  connection  witli  the  fact  that  tlie  defend- 
ant, within  three  days  after  maturity,  e.xiiibited  to  a  witness  a  notice  wliich  he  had  just 
received  through  the  [lostoflitte.  Tlie  i)ill  was  payalilc  in  Burlington,  Vcriuont,  and 
the  indorscrs  lived  in  Troy,  New  York.  Tiiere  was  also  evidence  that  one  of  the  de- 
fendants, who  were  partners,  had  admitted  the  protest,  and  luomised  to  do  all  in  his 
power  to  see  the  draft  jiaid ;  but  it  did  not  apjiear  whether  this  promise  was  made  be- 
fore or  after  the  dis.solution  of  the  firm.  In  Carter  v.  Burley,  9  N.  H.  558,  the  indorser 
agreed,  when  informed  of  the  dishonor  of  the  note,  to  give  certain  inercliandise  as  se- 
curity. Held  not  to  be  prima  facie  evLilence  of  due  demand  and  notice.  Conlri',  Dc- 
bnys  V.  Mollcrc,  15  Mart.  La.  318,  where  the  defendant  offered  to  give  a  'norlgago  as 


CH.  XIII.]  EXCUSES   FOR   WANT   OF   NOTICE.  621 

60  far,  at  least,  as  a  promise  to  pay  is  concerned. (y)  The 
weight  of  American  authority  is,  however,  in  favor  of  the  Eng- 
lish rule,  and  there  are  many  cases  which  hold  that  a  promise  to 
pay,  or  an  acknowledgment  of  liability,  is  presumptive  evidence 
that  everything  has  been  properly  done,  in  order  to  render  an 
indorser  or  drawer  liable,  (z)     There  are  also  cases  which  hold 

security  for  the  note,  which  was  held  equivalent  in  this  respect  to  a  promise  to  pay.  In 
Jones  V.  Savat^e,  6  Wend.  658,  snpra,  p  619,  note  w,  and  Moore  v.  Hardcastle,  11  Md. 
486,  notice  was  sent  to  the  shire  town  of  the  county  where  the  defendant  lived.  Held 
insufficient,  because  due  inquiries  were  not  proved  to  have  been  made,  and  there  was  a 
nearer  post-office.  The  following  letter  was  held  to  be  no  evidence  of  notice :  "Mr. 
Tarr  informs  me  that  you  positively  refused  to  deduct  one  cent  on  the  negotiable  note 
indorsed  by  me.  Now,  sir,  I  made  a  very  reasonable  request,  merely  to  deduct  the  in- 
terest. I  do  not,  I  assure  you,  feel  able  to  pay  the  principal.  My  means  are  limited ; 
but  I  have  some  friends  that  would  no  doubt  assist  me.  I  told  you,  if  you  would  do 
it,  you  should  have  your  money  this  fall,  without  any  trouble.  You  refused  the  over- 
tures, thougli  I  think  extremely  moderate."  The  letter  ended  with  a  defiance  to  the 
plaintiff  to  collect  the  note  if  he  could. 

(y)  Otis  V.  Hussey,  3  N.  H.  346,  where  Richanho/i,  C.  J.  said :  "  We  are  aware  that 
it  has  been  held  in  England  that  a  promise  to  pay  is,  in  these  cases,  to  be  left  to  the 
jury,  as  evidence  of  a  demand.  In  an  old  commercial  country  like  England,  where  a 
great  portion  of  the  business  has  long  been  transacted  by  means  of  negotiable  paper, 
and  where  most  of  those  who  deal  in  such  paper  must  be  presumed  to  be  acquainted 
with  the  law  in  relation  to  it,  it  may  be  proper  to  leave  it  to  a  jury  to  infer  a  demand  of 
the  maker  from  a  promise  of  the  indorser  to  pay.  But  in  this  State,  where  negotiable 
paper  has  a  very  limited  circulation,  there  is  no  ground  on  which  such  an  inference  from 
that  fact  can  rest;  and  we  are  of  opinion  that  the  rule  adopted  in  New  York  is  the  true 
one.  It  must  be  shown  affirmatively  that  the  defendant  had  notice,  when  he  made  the 
promise,  that  no  demand  had  been  made,  and  that  there  had  been  no  attempt  to  make 
one."  So  in  Farrington  v.  Brown,  7  N.  H.  271,  where  the  plaintiff,  instead  of  proving 
demand  and  notice,  offered  the  following  writing,  addressed  to  the  plaintiff's  counsel,  as 
evidence:  "Portsmouth,  July  15th,  1828.  I  hereby  hold  myself  accountable  for  the 
payment  of  a  note  signed  by  Jonathan  Brown,  payable  to  me,  and  indorsed  by  me, 
dated  April  1st,  1828,  payable  in  sixty  days,  for  $88.32,  now  iu  your  hands  for  collec- 
tion." See  Carter  v.  Burley,  9  N.  H.  558,  where  the  indorser  offered  to  give  security ; 
Nelson,  C.  J.,  Keeler  v.  Bartine,  12  Wend.  110,  119. 

(z)  Bank  of  U.  S.  v.  Lyman,  20  Vt.  666 ;  Collamer,  J.,  Russell  v.  Buck,  11  Vt.  166, 
175  ;  Bennett,  J.,  id.  182.  See  Nash  v  Harrington,  1  Aikens,  39,  2  id.  9  ;  Hosmer,  C.  J. 
Breed  v.  Hillhouse,  7  Conn.  523,  528;  Bruce  v.  Lytic,  13  Barb.  163;  Tebbetts  v. 
Dowd,  23  Wend.  379 ;  Pierson  v.  Hooker,  3  Johns.  68  ;  Loose  v.  Loose,  36  Penn. 
State,  538  ;  Duvall  v.  Farmers'  Bank,  9  Gill  &  J.  31,  7  id.  44,  where  the  following 
written  agreement  was  held  evidence  of  presentment  and  notice,  with  reference  to  a 
note  which  was  overdue  at  the  date  of  the  agreement :  "  Whereas  I  am  indorser," 
&e.,  "and  whereas  the  bank,  which  holds  the  notes,  has  agreed  not  to  protest  the 
same,  or  to  ask  a  renewal  of  them  when  they  become  due,  I  do  hereby  agree  to  dis- 
pense with  all  notice  of  the  time  of  payment,  or  of  the  non-payment  of  said  notes,  and 
to  be  answerable  for  the  amount  of  said  notes,  although  no  such  notice  is  given  to  me." 
See  Walker  v.  Laverty,  6  Munf.  487  ;  Pate  v.  M'Clure,  4  Rand.  Yn.  164  ;  Higgins  v. 
Morrison,  4  Dana,  100,  where  the  indorser  of  a  bill  said  he  would  pay  if  his  co-indorscr 


622  NOTES  AXD   BILLS.  [CH.  XHI. 

that  demand  and  notice  are  proved  by  part  payment ;  (a)  a  prom- 
ise to  pay  by  instalments ;  {b)  the  insertion  of  a  bill  among  the 
debts  of  an  insolvent  in  his  schednle ;  (c)  a  "written  admission 
of  the  reception  of  notice ;  (d)  a  reqiiest  to  have  the  note  kept 
charged  in  a  separate  acconnt,  with  no  objection  to  the  account 
when  rendered,  as  to  the  bill,  but  simply  to  claim  for  an  addi- 
tional item  of  credit ;  (e)  an  agreement  with  the  maker  to  take 
back  the  note,  and  to  return  the  property  for  which  it  was  given, 
to  the  maker;  (/)  an  agreement  to  let  judgment  go  by  default, 
if  the  holder  would  sue  the  defendant  and  the  maker  jointly,  in 
the  State  court,  instead  of  the  defendant  alone,  in  the  United 
States  court ;  (g")  part  payment  by  tlie  maker,  indorsed  on  the 
note  on  the  day  of  maturity. (A) 

The  distinctions  between  the  two  classes  of  cases  which  we 
have  been  considering  are  well  marked,  and  among  them  may 
be  mentioned  the  following.  In  the  waiver  cases,  there  must  be 
proof  that  the  party  who  made  the  promise  had  knowledge  of 


would,  and  subsequently  called  on  the  latter,  and  desired  to  see  some  securities  j,'ivcn  by 
the  drawer.  In  a  bill  in  equity,  he  did  not  rely  upon  the  want  of  notice  ;  and  the  co- 
indorser  had  taken  up  the  bill.  Held  evidence  of  notice,  and  that  the  defendant  was 
liable  to  his  co-indorser  for  contribution.  See  Lawrence  v.  Ralston,  3  Bibb,  102  ;  Ken- 
non  r..McRea,  7  Port.  Ala.  175  ;  Schmidt  v.  Radcliffe,  4  Strob.  296  ;  Hall  v.  Freeman, 
2  Nott  &  McC.  479;  Robbins  v.  Pinckard,  5  Smedes  &  M.  51  ;  Offit  v.  Vick,  Walk- 
er, 99  ;  Clayton  v.  Pliipps,'14  Misso.  399  ;  Dorsey  v.  Watson,  id.  59  ;  Mensc  v.  Osbern, 
5  id.  544  ;  Walker  v.  Walker,  2  Eng.  Ark.  542  ;  Oglesby  v.  Steamboat,  10  La.  Ann. 
117;  Union  Bank  v.  Grimshaw,  15  La.  321;  Dcbuys  v.  Mollere,  15  Mart.  La.  318; 
where  the  defendant  oft'cred  to  give  security.  This  case  is  contra  to  Carter  v.  liurley, 
9  N.  H.  558.  It  may  be  remarked,  that  in  some  of  the  above  cases  the  distinction  be- 
tween waiver  and  presumptive  evidence  does  not  seem  to  have  been  drawn  with  precis- 
ion. Coiven,J.,  in  Tebbetts  v.  Dowd,  23  Wend  379,  witli  respect  to  the  cases  which 
deny  the  doctrine  of  jjrcsumptive  evidence,  said,  p.  403  :  "  But,  moreover,  a  decisive 
answer  to  the  case  is,  that  tiie  mass  of  American  autliority  against  it  is  as  overwhelm- 
ing as  the  British."  However  it  might  have  been  when  that  case  was  decided,  we  think 
that  there  is  not  at  present  such  a  j)rcpondcran('c  of  autliority  as  will  be  seen  by  com- 
paring the  cases  cited  in  this  note  with  those  cited  siipi-a,  p.  CI 9,  note  iv. 

(a)  Bank  of  U.  S.  v.  Lyman,  20  Vt.  606;  Sherer  v.  Easton  Bank,  33  Penn.  State, 
134  ;  Levy  v.  Peters,  9  S.  &  R.  125  ;  Bibb  v.  Peyton,  11  Smedes  &  M.  275.  Sco  Union 
Bank  v.  Grimsliaw,  15  La.  321. 

{b)  Union  Bank  v.  Grimsliaw,  15  La.  321. 

(c)  Hyde  v.  Stone,  20  IIow.  170.     Contra,  Jones  r.  Savage,  6  Wend.  658. 

{(l)   Commercial  Bank  v.  Clark,  28  Vt.  325. 

(e)  Bank  of  U.  S.  v.  Lyman,  20  Vt.  666. 

(/)  Andrews  v.  Boyd,  3  Met.  434. 

{(/)  Robbins  V.  Pinckard,  5  Smedes  &  M.  51. 

(A)  Lane  v.  Steward,  20  Maine,  98. 


CH.  Xin.]  EXCUSES    FOR   WANT    OF   NOTICE.  623 

the  neglect,  and  the  burden  is  upon  the  plaiiitiff  to  prove  this. 
In  the  cases  on  presumptive  evidence  there  can  be  no  such  re- 
quirement, and  the  cases  on  this  subject,  in  which  the  defendant 
has  been  discharged  for  want  of  such  proof,  are  entirely  incon- 
sistent with  the  doctrine  itself.  For  upon  what  is  it  founded, 
unless  upon  the  ground  that  the  presentment  was  regular,  and 
the  notice  duly  given  ?  Hence,  to  say  that  there  must  be  knowl- 
edge of  neglect  would  be,  as  has  been  remarked,  a  legal  sole- 
cism, (t)  But  there  appear  also  to  be  authorities  in  which  the 
opposite  mistake  has  been  made.  Thus  it  has  been  said,  in  a 
Treatise  on  Bills,  that  (j)  "  a  promise  to  pay  will  entirely  dis- 


(i)  Cowen,  J.,  in  Tebbetts  v.  Dowd,  23  Wend.  379,  392,  after  citing  the  English  cases, 
said :  "  In  this  whole  score  of  cases,  and  more,  ranging  from  1730  to  1839,  no  trace  of 
the  rule  appears,  that,  in  order  to  make  the  promise  available  as  an  admission,  it  is 
necessary  to  show  that  the  drawer  or  indorser  was  aware  of  laches,  which  the  promise 
was  intended  to  cure.  A  remedy  for  laches  is  not  the  object.  To  require  knowledge 
of  laches  would  render  every  case  going  on  the  principle  of  presumptive  evidence  a 
legal  solecism.  The  ground  is,  that  the  promise  shall  be  received,  not  as  binding  per 
86,  but  as  evidence  that  there  were  no  laches ;  in  other  words,  that  regular  present- 
ment had  been  made,  that  it  was  followed  by  non-acceptance  or  non-payment,  of  which 
notice  had  been  duly  given.  Otherwise,  why  should  the  man  promise  1  Will  any  one 
do  so  without  knowing  that  he  is  liable  1  Common  experience  shows  that  he  will  not. 
The  English  cases  are  therefore  in  exact  accordance  with  the  principles  of  presumptive 
evidence.  These  principles  are  but  another  name  for  such  connections  between  moral 
causes  and  effects  as  are  evinced  by  general  observation."  The  case  of  Trimble  v. 
Thorne,  16  Johns.  152,  which  is  overruled  by  this  case,  was  denied  by  Hosmer,  C.  J.,  in 
Breed  v.  Hillhouse,  7  Conn.  523,  who  said  that  "this  case,  so  far  as  my  knowledge 
extends,  stands  alone  and  unsupported."  So  Bennett,  J.,  in  Russell  v.  Buck,  11  Vt. 
166,  183,  said  :  "  It  is  believed  this  case  is  opposed  to  the  whole  current  of  decisions, 
and  establishes  a  rule  of  evidence  not  supported  upon  principle  or  by  authority." 
Collier,  C.  J.,  Kennon  v.  McRea,  7  Port.  Ala.  175,  183  ;  Stromj,  J.,  Loose  v.  Loose,  36 
Penn.  State,  538,  545. 

(j)  Byles  on  Bills,  p.  237,  citing  Taylor  v.  Jones,  2  Camp.  105  ;  Stevens  ;;.  Lynch,  12 
East,  38,  2  Camp.  332.  But  neither  of  these  cases  bears  out  the  pro])Ositiou.  The  first 
case  was  one  of  presumptive  evidence.  The  only  evidence  of  presentment  of  the  note  and 
notice  was,  that  the  indorser,  two  years  after  maturity,  promised  to  pay,  and  requested 
time.  Baijley,  J.,  2  Camp.  105,  "  held  that,  M'here  a  party  to  a  bill  or  note,  knowing  it  to 
be  due,  and  knowing  tliat  he  was  entitled  to  have  it  presented  when  due  to  the  acceptof 
or  maker,  and  to  receive  notice  of  its  dishonor,  promises  to  pay  it,  this  is  presumptive 
evidence  of  the  presentment  and  notice,  and  he  is  bound  by  the  promise  so  made." 
This  latter  clause,  although  it  may  seem  to  support  the  doctrine  contended  for,  is  alto- 
gether too  uncertain.  The  judge  may  have  intended  to  have  said  that  it  was  binding 
only  until  laches  appear.  Or,  in  other  words,  that  here  is  evidence  of  due  presentment 
and  notice,  and  nothing  to  control  it ;  or  to  show  that  there  were  laches.  Hence  a  jury 
might  be  "  bound,"  under  such  circumstances,  to  find  for  the  plaintiff.  In  the  second 
case,  the  promise  was  held  binding  because  actual  knowledge  was  proved.  Lord  El- 
lenhorough,  as  reported  in  2  Camp.  332,  allowed  that  ignorance  "would  do  away  the 


624  NOTES   AND   BILLS.  [CH.  XIH. 

pense  with  proof  of  presentment  or  notice,  and  will  throw  on 
the  defendant  the  double  burden  of  proving  laches,  and  that  he 
was  ignorant  of  it."  This  same  principle  seems  to  have  been 
afl&rmed  by  some  authorities. (^•)  But  so  far  as  presentment  is 
concerned,  this  cannot  be  reconciled  with  either  doctrine.  Not 
with  that  of  presumptive  evidence ;  for  as  soon  as  the  defendant 
has  proved  laches  only,  the  plaintiff's  case  is  gone,  for  there  can 
be  no  presumption  of  due  presentment  when  there  is  actual 


effect  of  the  acknowledgment  and  promise,  but  it  appeared  that  the  defendant  was  fully 
acquainted  at  the  time  "  with  the  circumstances. 

(k)  Loose  V.  Loose,  36  Penn.  State,  538,  where  Strong,  J.  said  :  "There  was  proof 
on  the  trial,  that,  some  four  or  five  weeks  after  the  indorsement  of  the  notes  to  the  plain- 
tiff, they  having  been  overdue  when  indorsed,  the  defendant  stated  that  he  was  fast,  ac- 
knowledged his  liability,  and  promised  to  pay  them.  In  reference  to  this  proof,  the 
court  instructed  the  jury,  in  substance,  that  they  might  infer  from  it  that  the  notes  had 
been  duly  presented  to  the  maker  for  payment,  and  that  notice  of  his  default  had  been 
given  in  time  to  the  defendant,  or  that  demand  and  notice  had  been  waived  by  him. 
The  jury  were  also  instructed,  that  they  might  infer  from  the  defendant's  promise  that 
he  had  full  knowledge  of  the  facts  at  the  time  he  made  it;  and  that  if  his  acknowl- 
edgment of  liability  and  his  promise  to  pay  were  made  in  mistake,  the  burden  was 
upon  him  to  prove  it.  This  instruction  is  supposed  to  have  been  erroneous.  The  de- 
fendant contends,  not  that  an  acknowledgment  of  liability  and  a  promise  to  pay,  made 
by  an  indorser  after  default  of  payment  by  the  maker,  will  not  dispense  with  proof  of 
demand  and  notice  of  non-payment,  if  made  with  a  full  knowledge  of  the  facts  that 
there  had  been  laches  in  the  presentation  and  notice,  but  he  insists  that  it  is  incumbent 
upon  the  holder  to  adduce  evidence  that  the  indorser  had  such  knowledge,  and  that  it 
cannot  be  inferred  from  his  promise  to  pay.  In  otlier  words,  it  is  argued  that  the  bur- 
den is  upon  the  holder  to  show  by  distinct  evidence  that  the  promise  was  not  made  in 
mistake,  or  in  ignorance  of  the  existence  of  laches.  This  position  cannot  be  maintained. 
What  is  the  precise  effect  of  a  promise  to  pay,  made  by  an  indorser  after  a  note  or  bill 
has  flillcn  due  and  been  dishonored,  has  been  a  subject  much  debated.  Many  of  the 
cases  hold  that  it  amounts  to  an  admission  that  a  proper  demand  was  made,  and  that 
due  notice  was  given.  If  it  be  such  an  admission,  it  is  not  apparent  how  it  can  be  ne- 
cessary to  prove,  in  addition  to  an  indorser's  promise,  that  he  knew  no  sufficient  demand 
had  been  made  or  notice  given.  Other  cases,  i)crhaps  more  numerous,  hold  that  a 
promise  to  pay,  or  an  acknowledgment  of  liability,  is  a  waiver  of  due  presentation  and 
notice ;  and  some  cases  treat  it  botli  as  a  waiver  and  an  admission,  llcgarding  it  as  a 
waiver,  it  of  course  must  be  essential  that  the  party  making  it  knew  the  laches  M'hich  ho 
is  alleged  to  have  excused,  for  waiver  is  not  without  intention.  There  is,  however,  very 
great  harmony  in  the  decisions  in  holding  that  a  promise  or  acknowledgment  itself  raises 
a  presum|)tion  that  the  drawer  of  the  bill,  or  the  indorser  of  the  note,  was  acquainted  with 
the  laches  of  the  holder,  which  hi.s  promise  is  alleged  to  have  waived.  I  know  of  but  one 
case  in  which  tiie  opposite  doctrine  has  been  distinctly  asserted,  and  that  is  the  case  of 
Trimble  v.  Thorne,  IG  Johns.  l.'J2,  and  it  has  often  been  spoken  of  with  disapjirobation  by 
other  courts."  So  far  as  presentment  is  concerned,  it  would  seem  somewhat  astonishing 
that  the  judge  should  say  that  there  was  "  very  great  harmony  "  in  the  decisions  that  a 
promise  to  pay  raises  the  presumption  of  knowledge  of  laches.  According  to  tiic  cases 
cited  supra,  j).  601,  note  x,  over  thirty  in  number,  the  "  harmony  "  would  a])pear  to  be 


CH.  XIII.]  EXCUSES    FOR    WANT    OF   NOTICE.  625 

proof  of  laches.  Nor  can  it  be  reconciled  with  the  doctrine  of 
waiver.  For  as  soon  as  the  defendant  proves  laches,  the  plain* 
tiff  is  bound  to  prove  that  the  former  had  knowledge  of  the 
laches  at  the  time  of  the  promise.  As  to  notice,  the  rule  may 
be  properly  stated, (/)  though  it  is  not  snpported  by  all  the  au- 
thorities,(w)  on  the  ground  that  a  promise  to  pay,  as  regards 
notice  alone,  may  be  held  to  be  -prima  facie  binding,  because  tlie 
defendant  may  be  presumed  to  know  whether  he  received  notice 
or  not ;  and  it  is  incumbent  on  him  to  remove  this  presumption 

directly  the  other  way ;  and  the  rule  laid  down  in  this  case  is  not  supported  by  more 
than  two  or  three  cases,  and  it  is  somewhat  doubtful  if  it  is  by  any.  As  to  notice,  we 
do  not  see  how  tlie  cases  can  be  reconciled.  Supra,  p.  603,  note  a,  604,  note  h.  Colliiv, 
0.  J.,  in  Kennon  v.  McRea,  7  Port.  Ala.  175,  184,  cited  the  remark  from  Byles  with  appro- 
bation, and  the  cases  cited  by  that  author;  and  also  Nash  v.  Harrington,  1  Aikens,  39, 
2  id.  9.  This  last  case  is  doubtful  authority  on  the  point  for  which  it  is  cited.  The  note 
was  on  demand,  dated  Jan.  30th.  The  demand  was  made  Dec.  5th,  and  notice  given 
Dec.  7th.  The  maker  at  the  time  of  indorsement  was  notoriously  insolvent,  and  contin- 
ued so  till  the  trial.  The  first  point  which  arose  was,  whether  the  demand  was  not  too 
late,  or  whether  due  diligence  had  been  used.  The  court,  after  stating  that  "  it  would 
not  seem  reasonable  to  apply  to  this  case  that  law  merchant  which  i.s  made  to  ajjply  to 
notes  given  by  good  responsible  men,  and  negotiated  before  they  become  payable," 
which  is  not  law,  said  that  they  were  "  not  fully  prepared  to  say  whether  this  was  or 
was  not  reasonable  diligence."  They  decided  that  the  judge  was  wrong  in  refusing 
to  admit  evidence  that  the  defendant  acknowledged  his  liability,  and  promised  to 
pay.  They  seem  to  have  put  their  decision  partly  upon  the  ground  that  the  evidence 
was  admissible  to  show  that  due  diligence  in  giving  notice  was  used.  With  regard  to 
knowledge,  Hutchinson,  J.  said  :  "  This  promise  must  be  prima  facie  binding  ;  but  the 
defendant  urges  that  it  is  not  binding,  unless  he,  at  the  time  of  the  promise,  knew  of 
the  laches,  which  operated  to  discharge  him.  It  is  true  such  a  promise,  made  in  total 
ignorance  of  a  defence,  which  existed,  would  not  bind  ;  but  notliing  appears  but  that 
the  defendant  knew  every  circumstance  ;  and  if  he  would  exonerate  himself  from  his 
promise,  on  this  ground,  the  burden  of  proof  rests  on  him.  For  he  could  not  be  igno- 
rant of  the  time  when  notice  was  given  him  of  the  non-payment."  This  last  clause 
would  seem  to  show  that,  even  as  to  knowledge,  the  court  decided  that  a  promise  to 
pay  raised  that  presumption  with  regard  to  notice,  which  was  the  point  under  consid- 
eration, on  the  ground  that  the  indorser  must  have  known  whether  he  received  it  in 
due  time. 

(/)  See  Nash  v.  Harrington,  1  Aikens,  39,  2  id.  9,  supra,  note  k. 

(m)  The  facts  in  Loose  v.  Loose,  36  Penn.  State,  538,  were  as  follows.  The  notes 
were  overdue  at  the  time  of  indorsement.  It  does  not  seem  to  have  been  disputed  but 
that  the  demand,  which  was  made  four  days  subsequent  to  indorsement,  was  within 
due  time.  The  question  was,  whether  the  notice  was  regular,  which  was  given  four- 
teen days  after  the  demand.  There  was  evidence  of  a  promise  to  pay,  admission  of 
liability,  &c.  The  presiding  judge  seems  to  have  instructed  the  jury,  that,  as  to 
notice,  the  promise  was  either  evidence  that  a  prior  notice  had  been  given,  or  that  it 
raised  the  presumption  that  the  defendant  knew  that  he  had  not  received  it  at  the 
proper  time.  The  decision  is,  that  the  charge  was  correct,  but  the  language  of  Strong,  J. 
is  stronger  than  the  facts  would  seem  to  warrant. 

Vol.  I.— 2  P  53 


626  NOTES   AND   BILLS.  [CH.  XHL 

bj  proof  of  ignorance  of  laches.  It  would  be  more  accurate,  ac- 
cording to  the  authorities,  to  state  the  rule  as  to  presentment  as 
follows :  A  promise  to  pay  throws  the  burden  on  the  defendant 
to  prove  laches,  but  the  burden  is  again  shifted  to  the  plaintiff 
to  prove  knowledge,  so  soon  as  laches  are  shown.  Another  dis- 
tinction between  the  two  classes  of  cases  is,  that  in  those  of 
waiver  greater  strictness  is  required  as  to  the  evidence  of  the 
promise  than  in  those  to  the  point  of  presumptive  evidence. 
This  distinction  may  be  seen  from  the  instances  which  we  have 
already  given.  Another  distinction  is,  that  questions  of  waiver 
would  seem  to  be  more  matter  of  law  than  those  of  presumptive 
evidence.  All  that  is  required  in  the  former  is,  to  prove  the 
promise  sufficiently  clearly,  and  knowledge  ;  but  in  the  latter, 
the  indorser  or  drawer  will  be  able  to  repel  the  presumption, 
either  by  showing  actual  laclies,(w)  or  any  other  circumstance 
going  to  show  neglect. (o)  Thus  even  a  written  admission  by 
the  indorser  that  he  had  received  due  notice  is  only  prima  facie 
evidence,  and  maybe  rebutted. (;?)  The  advantage  of  allowing 
an  admission  of  an  indorser  or  drawer  to  operate  as  an  admis- 
sion of  due  demand  and  notice,  or  presumptive  evidence,  may 
be  seen  in  cases  where  the  usual  methods  of  proving  them  are 
unavailable ;  as,  for  instance,  wiiere  the  party  who  made  the 
demand  and  gave  the  notice  is  dead,  and  where  a  notarial  cer- 
tificate or  record  is  inadmissible  evidence. (<7)  It  would  also 
seem  beneficial  where  the  evidence  is  defective  for  some  reason 
rather  technical  than  just ;  as,  for  instance,  in  case  where  the 

(n)  Bruce  v.  Lytic,  13  Barb.  163. 

(o)  Lawrence  v.  Ralston,  3  Bibb,  102 ;  Sharkey,  C.  J.,  Robbins  v.  Pinckard,  5 
Smedes  &  M.  51,  73;  Bibb  ».  Peyton,  11  id.  275.  Li  Hyde  v.  Stone,  20  How.  170, 
the  insertion  of  the  bill  among  tlie  debts  of  the  insolvent,  upon  liis  sciiedule,  was  held 
evidence  of  notice,  the  sufficiency  of  wliicli  is  for  the  jury,  and  not  subject  to  review  in 
the  Sujireme  Court  of  the  United  States.  See  Ricketts  i-.  Toulmin,  7  Law  J.,  K.  B. 
108  ;  Jackson  v.  Collins,  17  Law  J.,  N.  S.,  Q.  B.  142. 

(p)  Commercial  Bank  r.  Clark,  28  Vt.  325.  In  Duvall  v.  Farmers'  Bank,  9  Gill  & 
J.  31,  the  agreement  relied  on  was  written,  but  lield  subject  to  be  rebutted  by  other 
proof. 

(q)  Sharketj,  C.  J.,  in  Robbins  v.  Pinckard,  5  Smedes  &  M.  51,  72,  said  :  "  The  no- 
tary, it  seems,  died  after  suit  brouglit,  and  before  trial ;  aiul  in  sucii  cases  it  is  com- 
petent to  resort  to  secondary  evidence.  This  may  account  for  the  inability  of  the 
plaintiff  to  prove  notice,  and  furnisli  a  reason  why  no  such  proof  was  attempted. 
Under  sucli  cirrmmstanccs,  it  is  peculiarly  proper  to  open  the  door  for  the  admission  of 
presumptive  evidence,  and  the  promises  of  the  defendant  were  sufficient  to  raise  the 
Btrongest  presumptions  against  him." 


CH.  Xm.]  EXCUSES   FOR   WANT   OF   NOTICE.  627 

proof  of  notice  is  that  it  was  deposited  in  the  post-office  of  the 
town  where  the  indorscr  lives.  There  is  certainly  in  such  cases, 
under  the  existing  regulation  of  the  mails,  more  probability  that 
a  notice  so  deposited  will  reach  the  party  for  whom  it  is  intended 
than  if  it  were  mailed  for  a  distant  place.  Because  in  the  first 
instance  there  are  only  the  chances  of  neglect  in  one  post-office 
to  be  considered,  while  in  the  latter  there  are  generally  the 
chances  of  neglect  in  several  offices,  and  the  risk  of  negligence 
and  loss  incurred  in  the  transportation  of  the  mail  from  place  to 
place  to  be  taken  into  account. 


SECTION     V. 

GENERAL  REMARKS  ON  THE  SUBJECT  OF  EXCUSE  FOR  NON  NOTICE. 

It  has  already  been  stated,  that  a  notice  duly  sent  by  a  sub- 
sequent to  a  prior  indorser  enures  to  the  benefit  of  the  inter- 
mediate indorsers ;  (r)  therefore  an  indorscr  who  has  been  com- 
pelled to  take  up  a  note  may  show,  by  way  of  excuse  for  not 
giving  notice  himself  to  the  indorser  whom  he  wishes  to  hold, 
that  one  of  the  subsequent  indorsers  gave  due  notice  to  the  de- 
fendant. In  the  cases  which  support  this  doctrine  there  appears 
to  have  been  an  actual  reception  of  the  notice,  and  it  would 
seem  to  be  still  unsettled  whether  the  rule  applies  to  such  cases 
only.  Thus,  as  has  already  been  said,(s)  if  the  holder,  after 
making  the  necessary  inquiries,  and  using  due  exertions  to  find 
where  an  indorser  lives,  should  send  the  notice  to  the  wrong 
place,  the  indorser  would  be  liable  to  him,  although  the  notice 
was  never  received.  The  question  might  arise  here,  whether 
these  facts,  or  this  excuse,  would  so  far  enure  to  the  benefit  of 
an  intermediate  indorser  who  has  been  compelled  to  take  up  the 
bill,  his  liability  being  undoubted,  that  they  would  constitute  a 
valid  excuse,  in  his  behalf,  for  not  himself  notifying  the  indorser. 
There  would  seem  to  be  good  reason  for  holding  him  liable,  upon 
the  ground  that  the  intermediate  indorser,  upon  payment  of  the 
bill,  was  subrogated  to  the  rights,  and  stood  in  the  place  of  the 
subsequent  indorser.     We  are  aware  of  only  on&  case  in  which 

(r)  Supra.  ^  504,  note  a. 
(s)  Supra,  p.  496,  note  h. 


628  NOTES  AND   BILLS.  [CH.  Xm. 

this  question  was  presented  distinctly  for  adjudication.  In  this 
the  indorser  sued  was  held  liable  in  the  court  below,  and  this 
decision  appears  to  have  been  overruled  by  a  higher  tribunal  in 
the  same  jurisdiction.  The  facts  of  the  case,  however,  show 
that  the  plaintiff  was  himself  the  principal  cause  of  the  notice 
having  been  missent ;  and  that  he  actually  knew  where  the 
defendant  resided,  and,  by  implication  at  least,  that  the  notice 
had  been  transmitted  to  the  wrong  place. (^) 

It  is  a  sufficient  excuse  for  delay  in  presenting  a  note  or  bill 
payable  on  demand  or  at  sight,  to  prove  that  it  has  been  put 
into  circulation  by  different  parties, (zt)  and  the  same  would 
doubtless  be  true  with  respect  to  notice.  But  where  a  note  or 
bill  on  demand  has  been  actually  dishonored  on  presentment, 
the  indorser  is  entitled  to  notice  within  the  same  time  as  in 
the  case  of  other  notes  and  bills, (y)  unless  the  paper  has  come 
into  the  hands  of  a  holder  in  good  faith,  ignorant  of  tho 
laches  of  the  party  who  presented  it,  and  who  is  not  himself 
negligent  in  taking  the  necessary  steps  to  fix  the  liability  of  the 
indorser. 

Notes  and  bills  in  which  no  time  for  payment  is  specified 
stand  upon  the  same  footing,(t^)  and,  in  many  respects,  so  do 


(t)  Beale  v.  Parish,  24  Barb.  243,  overruled  20  N.  Y.  407.  The  plaintiffs  had 
indorsed  to  a  bank  ;  and  the  notary,  after  inquiring  at  the  bank,  which  could  give  no 
information,  gave  notice  to  the  plaintiffs,  and  asked  thera  where  he  should  send  tho 
notice  to  the  first  indorser.  They  answered  tiiat  he  sliould  send  the  notice  to  Dunkirk 
or  Buffalo,  and  requested  him  to  forward  the  notice  to  both  places.  The  i)laintiffd 
knew  that  the  indorser  resided  in  Canandaigua,  and  gave  their  direction  through  mis- 
apprehension, there  being  no  pretence  of  intentional  misrepresentation  on  their  part 
Tiie  Supreme  Court  held  the  defendant  liable,  mainly  on  the  ground  of  subrogation, 
Roosevelt,  J.  delivering  a  short  opinion  to  this  efltect.  Pmhodtj,  J.  dissented,  mainly  on 
the  ground  that  the  right  of  subrogation  did  not  exist,  but  alluded  to  the  "  careless 
misdirection  "  of  the  plaintiff.  Grover,  J.  delivered  the  overruling  opinion  of  the 
Court  of  Appeals,  which  proceeded  on  two  grounds.  One  was,  that  the  bank  was 
bound  to  send  a  new  notice  as  soon  as  it  discovered  the  mistake  in  the  first,  and  there- 
fore could  not  have  recovered  on  the  note,  had  they  continued  to  hold  it.  But  this 
seems  in  direct  contradiction  to  Lambert  v.  Ghisclin,  9  How.  .5.')2,  which  liolds  that,  if 
a  notice  be  sent  after  reasonable  diligence,  although  inefi'ectually,  the  right  of  action  at 
once  accrues.  The  other  ground  was,  that  if  the  bank  had  the  right  of  action,  it  did 
not  pass  by  subrogation  to  the  plaintiff,  and  that  "  there  is  no  authority  for  holding 
that  an  excuse  for  the  omission  to  serve  notice  by  the  holders  shall  extend  to  other 
parties  for  whom  there  is  no  such  excuse." 

(u)  Supra,  p.  268,  note  d, 

(r)   Supra,  p,  519,  note  m. 

(w)   Supra,  p.  381. 


CH.  Xm.]  EXCUSES   FOR   WANT   OF  NOTICE.  620 

notes  indorsed  after  maturity ;  [x)  but  there  are  authorities  ii: 
which  it  is  said  that  notice  sent  within  two  months  after  a  de- 
mand of  such  a  note  was  sufficient,(7/)  and  that  no  notice  was 
necessary.  (2r) 

It  may  be  laid  down  as  a  universal  rule,  that  neither  knowl- 
edge or  the  probability,  however  strong,  that  a  note  or  bill  will 
be  dishonored, (a)  nor  mere  knowledge  that  the  bill  has  been 
dishonored,  not  obtained  in  the  regular  manner,  and  from  a 
party  who  has  the  right  to  give  notice,  is  the  equivalent  of  legal 
notice ;  and  hence  it  does  not  constitute  any  excuse  for  failure 
to  give  this  in  the  proper  manner.(6)     It  has  been  said,  that  the 


(x)  Supra,  p.  268,  note  g,  p  381,  note;. 
(y)  Supra,  p.  519,  note  q. 
(z)  Supra,  p.  519,  note  r. 

(a)  Cresswdl,  J.,  Gaunt  v.  Thompson,  7  C.  B.  400,  409.  As  an  illustration  of  this, 
the  known  insolvency  of  the  maker  constitutes  no  excuse. 

(b)  In  Tinthil  v.  Brown,  1  T.  R.  167,  169,  Ashhurst,  J.  said  :  "  Notice  means  something 
more  than  knowledge."  In  Esdaile  v.  Sowcrby,  11  East,  114,  Lord  EUenfjorough  said  : 
"  As  to  knowledge  of  the  dishonor  by  the  person  to  be  charged  on  the  bill  being  equiv- 
alent to  due  notice  of  it,  given  to  him  by  the  holder,  the  case  of  Nicholson  v.  Gouthit, 
2  H.  Bl.  610,  is  so  decisive  an  authority  against  that  doctrine,  that  we  cannot  enter 
again  into  the  discussion  of  it."  In  Burgh  v.  Leggc,  5  M.  &  W.  418,  420,  Parke,  B  said  : 
"  There  must  be  proof  of  a  notice  given  from  some  party  entitled  to  call  for  payment 
of  the  bill,  and  conveying  in  its  terms  intelligence  of  the  presentment,  dishonor,  and 
parties  to  be  held  liable  in  consequence.  That  is  the  true  meaning  of  the  word  '  no- 
tice,' when  used  in  declarations  of  this  kind,  and  the  mere  knowledge  of  a  party  is  not 
enough."  Alderson,  B.  said :  "  I  think  we  ought  to  construe  the  word  '  notice '  as 
meaning  a  notification  of  the  fact  of  the  bill  having  been  dishonored  after  the  present- 
ment took  place ;  and  it  is  far  better  for  the  advancement  of  justice  to  adhere  to  this 
simple  meaning,  than  to  confound  notice  with  knowledge."  In  Mlers  i'.  Brown,  11 
M.  &  W.  372,  374,  Alderson,  B.  said  :  "  Knowledge  of  the  dishonor,  obtained  from  a 
communication  by  the  holder  of  the  bill,  amounts  to  notice."  See  also  the  remarks  of 
Cresswell,  J.,  in  Gaunt  ».  Thompson,  7  G.  B.  400,  410.  In  that  case  the  holder  pre- 
sented the  bill  at  the  house  of  the  acceptor,  and  the  defendant,  the  drawer,  to  whom 
the  bill  was  shown,  said  that  he  was  the  executor  of  the  acceptor,  and  requested  the 
holder  to  let  it  stand  over  a  few  days.  It  was  objected  that  this  did  not  constitute  due 
notice  to  the  drawer,  because  knowledge  was  not  notice  ;  but  it  was  held  to  be  suthcient. 
During  the  argument,  it  was  asked  by  counsel  whether  notice  was  necessary  where  the 
drawer  married  the  acceptor,  between  acceptance  and  maturity.  Williams,  J.  replied 
by  asking  how  it  would  be  if  the  holder  employed  the  drawer  to  present.  In  Agan  v. 
M'Manus,  11  Johns.  180,  the  holder  left  the  note  in  the  indorser's  hands,  the  indorser 
being  his  attorney,  to  compel  payment  from  the  maker.  A  question  arose  as  to 
whether  this  constituted  notice  ;  but  it  appeared  that  the  holder  had  before  called  upon 
the  maker  for  payment,  and  had  not  given  any  notice  of  the  refusal.  Thompson,  0.  J. 
said :  "  It  is  evident,  therefore,  that,  when  the  note  was  left  with  the  defendant,  it  was 
not  intended  as  a  notice  of  non-payment,  or  a  demand  of  payment  from  the  indorser ; 
for  it  was  left,  as  is  stated,  for  the  purpose  of  obtaining  the  money  from  the  maker." 

53* 


G30  NOTES  AND   BILLS.  [CH.  XHL 

excuse  arising  from  want  of  funds  may  be  an  exception,  but  we 
have  seen  that  this  depends  upon  a  different  and  entirely  distinct 
principle. (c)  It  has  also  been  frequently  said,  that  notice  to  one 
partner  was  notice  to  the  firm,  because  the  knowledge  of  one 
was  the  knowledge  of  all.  But  we  should  prefer  to  consider  this 
rule,  so  far  as  relates  to  the  law  of  notice  of  dishonor  of  nego- 
tiable paper,  as  dependent,  not  upon  knowledge,  but  upon  the 
identity  of  interest  between  each  partner  and  the  partner- 
ship, making  each  member,  so  far  as  relates  to  notice,  in  fact 
the  firm. 

It  may  likewise  be  laid  down  as  a  rule,  equally  universal  with 
the  preceding  one,  that  absence  of  injury  from  want  of  notice  is 
now  no  excuse  for  neglect,(tZ)  and  evidence  to  prove  want  of 
injury  is  inadmissible. (e) 

See  the  remarks  of  Duncan,  J.,  Juniata  Bank  ik  Hale,  16  S.  &  R.  157,  160.  In  Cory  ». 
Scott,  3  B.  &  Aid.  619,  622,  Abbott,  C.  J.,  referring  to  Walwyn  v.  St.  Quintin,  1  Bos. 
&  P.  652,  said  :  "  That  decision  which  substituted  knowledge  for  notice  I  have  always 

regretted As  I  have  always  thought  that  it  would  have  been  better  never  to 

have  considered  knowledge  as  equivalent  to  notice,  I  cannot  consent  to  carry  the  law 
one  step  further." 

(c)  Supra,  p.  545,  et  seq. 

(d)  Bullet;  J.,  in  Bickerdike  v.  Bollman  1  T.  R.  405,  said  :  "  On  the  second  trial 
of  the  cause  of  Tindal  v.  Brown,  1  T.  R.  167,  before  me  at  Guildhall,  the  jury  told  me 
they  found  their  verdict  for  the  plaintiff  on  the  ground  that  it  had  not  appeared  from 
the  evidence  that  any  injury  had  arisen  to  the  party  from  want  of  notice.  In  conse- 
quence of  which,  upon  the  subsequent  trial,  I  told  the  jury  that,  when  a  bill  was  ac- 
cepted, it  was  prima  fade  evidence  that  there  were  effects  of  the  drawer  in  the  hands  of 
the  acceptor.  The  mistake  of  the  jury  on  the  former  occasion  had  arisen  from  their 
taking  it  for  granted  that  the  drawer  had  not  been  injured  by  the  want  of  notice,  be- 
cause he  had  not  proved  it,  whereas  that  proof  lay  on  the  plaintiff'  to  produce."  In 
Hill  V.  Martin,  12  Mart.  La.  177,  Porter,  J.  .said:  "The  plaintiffs  read  from  Chitty, 
p.  151,  to  show  that,  when  the  indorser  was  not  injured  by  want  of  notice,  the  laches  to 
give  it  was  cured.  This  rule  is  stated  in  a  note  to  the  edition  of  1809,  but  it  is  not 
law."     See  the  remarks  of  Abbott,  C.  J.,  in  Hill  v.  Heap,  Dow.  &  R.,  N.  P.  57. 

(e)  In  Dennis  v.  Morrice,  3  Esp.  158,  G'/6/).s,  counsel  for  the  ])laintiff,  said  :  "The 
principle  upon  which  notice  lias  been  held  necessary  to  be  given  to  the  drawer  is,  that 
he  may  receive  a  prejudice  from  the  want  of  notice,  as  he  might  take  his  effects  out  of 
the  hands  of  the  drawee;  if,  therefore,  I  can  sliow  that  no  prejudice  whatever  arose 
to  the  drawer  from  the  want  of  notice,  that  shall  disj>ensc  with  tiie  necessity  of  it.  If 
the  plaintiff  is  not  allowed  to  go  into  this  kind  of  evidence,  the  drawer  must  hold  the 
money  received  from  the  payee  as  the  consideration  of  the  bill,  without  the  ])ossibility 
of  its  ever  being  recovered."  But  Lord  Kew/on  said  :  "  I  cannot  hold  the  law  to  bo  so. 
The  only  case  in  which  notice  is  dispen.scd  with  is  where  there  arc  no  ellect*  of  the 
drawer  in  the  drawee's  hand."?.  This  would  l)e  extending  the  rule  still  further  tiian  jver 
lias  liccn  done,  and  opening  new  sources  of  litigation,  in  investigating  whether  in  fact 
the  drawer  did  receive  a  prejudice  from  the  want  of  notice  or  not."  The  evidence 
was  rejected,  und  the  plaintiff  nonsuited. 


CH.  XIII.]  EXCUSES   FOR   WANT   OF  NOTICE.  631 

As  an  illustration  of  the  stringency  of  the  rule,  the  holder  in 
one  case  attempted  to  excuse  a  failure  to  give  notice  of  non- 
acceptance  to  an  indorser,  on  the  ground  that,  two  months  be- 
fore the  bill  should  have  been  presented  for  acceptance,  the 
drawer  had  become  insolvent,  all  his  effects  had  been  attached, 
and  he  himself  had  absconded  ;  but  notice  was  held  neces- 
sary. (/) 

From  an  early  case,  it  would  appear,  as  we  have  intimated, 
that  originally  the  drawer  was  held,  unless  he  could  prove  actual 
injury  by  neglect  or  laches  in  giving  notice. (^)  It  may  be  sup- 
posed that  after  a  while  the  mere  lapse  of  time  was  considered 
prima  facie  proof  of  injury,  and  that  finally,  owing  to  the  diffi- 
culty of  proof  in  most  instances,  the  rule  was  laid  down  strictly, 
that  notice  is  necessary  whenever  there  is  a  possibility  of  in- 
jury ;  (A)  and  as  there  is  scarcely  any  case  in  which  it  may 
not  be  possible  for  injury  to  be  received  in  some  way  from 
want  of  notice,  we  may  say  that  a  failure  to  give  it  in  the 
proper  manner  is  so  entirely  conclusive  evidence  of  injury,  that 
absence  of  injury  is  entirely  immaterial. 

However  strong  an  influence  the  matter  of  injury  may  have 
had  in  the  gradual  formation  of  the  law  with  respect  to  no- 
tice, we  tliink  that  now  there  is  no  connection  between  them, 
and  that  this,  as  a  reason,  has  entirely  disappeared.  Tlie  only 
exception  to  be  urged  against  this  conclusion  is  the  sugges- 
tion that   has  been  made,(i)  that    a   party  who  has  no  reason- 

[f)  May  V.  Coffin,  4  Mass.  341.  In  this  case  the  counsel  said:  "All  his  property 
was  gone  from  him,  and  that  even  his  body  was  not  within  the  reach  of  legal  process. 
Of  what  conceivable  use,  then,  could  notice  have  been  ?  Certainly  not  to  enable  the 
defendant  to  secure  himself."  So  notice  to  an  indorser  was  held  necessary  in  Nash  v. 
Harrington,  2  Aiicens,  9,  where  the  maker,  an  insolvent,  was  in  prison  for  debt  at  the 
maturity  of  the  note,  and  had  no  attachable  property. 

(g)  Meggadow  v.  Holt,  12  Mod.  15,  decided  in  A.  D.  1691,  where  the  court  said: 
"  The  hiw  of  merchants  in  this  case  is,  that  if  he  who  has  such  a  bill  lapse  his  time, 
and  do  not  protest,  or  make  his  request,  if  any  accident  iiappcn  by  this  neglect,  in 
prejudice  to  the  drawer,  he  hath  lost  iiis  remedy  against  liim ;  but  if  such  a  thing 
had  happened,  it  ought  to  have  come  of  the  other  side,  and  not  being  so,  wc  must 
judge  on  the  declaration."  Judgment  was  given  for  the  jjlaintifF.  This  case  is  also 
reported  Mogadara  v.  Holt,  in  1  Show.  294. 

(h)  Marshall,  C.  J.,  in  French  v.  Bank  of  Columbia,  4  Cranch,  141,  l.')4,  said  :  "  The 
law  requires  this  notice,  not  merely  as  an  indemnity  against  actual  injury,  but  as  a 
security  against  a  possible  injury,  which  may  result  from  the  laches  of  the  holder  of 
the  bill." 

(i)  Supra,  p.  551,  note  c. 


632  NOTES   AND    BILLS.  [CH.  XIH. 

able  grounds  to  expect  that  his  bill  will  be  honored,  may  still 
object  to  what  would  otherwise  be  a  perfect  excuse  for  failure 
to  give  due  notice,  by  proving  actual  injury.  But  this  we 
have  doubted,  because  a  party  can  have  no  right  to  complain 
that  he  has  been  injured  by  the  direct  consequence  of  his  own 
wrongful  act.  We  have  also  expressed  an  opinion  tliat  the 
doctrine  relating  to  the  excuse  of  want  of  funds  proceeds  upon 
other  principles  or  reasons  than  that  of  injury, (j)  altliough 
this  has  been  freqiiently  given  as  the  reason. (^) 

With  respect  to  the  pleading  as  regards  notice  it  may  be 
observed,  tliat  objection  to  the  want  of  it  should  be  taken  before 
verdict,  otherwise  it  will  be  taken  for  granted  that  due  notice 
has  been  given. (/) 


(/)   Siipia,  p.  551. 

{k)  In  Mechanics'  Bank  v.  Griswold,  7  Wend.  165,  168,  i\Wso;i,  J.  said :  "Upon 
the  maxim  that,  when  the  reason  for  the  rule  of  law  does  not  exist,  it  ought  not  to  be 
applied,  it  has  frequently  been  decided  that,  in  cases  wliere  the  non-payment  by  the 
maker,  and  failure  of  notice  to  the  indorser,  cannot  possibly  operate  to  the  injury  of 
the  indorser,  the  omission  will  not  discharge  him."  The  judge  then  goes  on  to  ex- 
plain the  various  excuses  for  want  of  notice  on  this  ground.  Tliis  same  proposition 
is  laid  down  more  emphatically  by  Cowen,  J.,  in  Commercial  Bank  v.  Hughes,  17 
Wend.  94,  97,  who  said  :  "  Formerly  it  was  necessary,  in  order  to  complete  the  de- 
fence, that  the  drawer  should  prove  damage  to  himself  arising  from  tlie  holder's 
laches ;  but  now  it  will  be  presumed.  Yet  the  presumption  is  not  conclusive.  If  it 
appear  in  truth  that  no  damage  could  arise,  the  necessity  for  presentment  or  notice 
does  not  exist We  certainly  have  a  very  strong  current  of  autliority  for  say- 
ing that,  where  tlie  indorser  or  drawer  has  plainly  suffered  notliing,  and  can  sustain 
no  miscliief  for  want  of  demand  and  notice,  none  need  be  made  or  given  ;  and  it 
accords  with  the  true  and  only  reason  why  such  demand  and  notice  are  called  for. 
The  question  seems  merely  to  be  one  of  evidence.  The  drawer  or  indorser  is  pre- 
sumed to  have  been  injured  by  the  omission,  until  the  plaintiff,  by  proof  on  his  side, 
remove  all  chance  of  damage."  It  would  seem,  from  the  facts  of  the  case,  that  the 
judge  was  inclined  to  the  opinion  that,  where  the  drawer  of  a  bill  liad  himself  re- 
ceived the  amount,  as  by  getting  it  discounted,  he  would  not  be  entitled  to  notice. 
There  is  a  dictum  of  Thompson,  C.  J.,  in  Agan  v.  M'Manus,  11  Johns.  180,  181, 
somewhat  to  the  samx;  effect.  But  this  is  opposed  to  the  case  of  Dennis  v.  Morrice, 
3  Esp.  158,  sujira,  p.  630,  note  e,  and  cannot,  we  think,  be  supported.  We  should  also 
dissent  from  the  principle  as  laid  down  by  Mr.  Justice  Coiven. 

(I)  Cornwall  v.  Gould,  4  Pick.  444. 


CH.  XIV  "1  PROTKST.  633 


CHAPTER    XIV. 

OF   PROTEST    AND    OF    RE-EXCHANGE. 


SECTION   I. 

OF    PROTEST. 


When  negotiable  paper  is  protested,  the  protest  is  made  before 
a  notary  public, (w)  if  there  be  such  an  officer  within  reach.  If 
not,  it  is  said  that  it  may  be  made  before  any  respectable  inhab- 
itant of  the  place,  before  two  proper  witnesses. (w) 


(m)  The  origin  of  tne  term  notary  is  traced  as  far  back  as  the  ancient  Roman  Re- 
public, wl-.en  the  term  noiurius  was  applied  to  a  person  who  was  occupied  in  taking 
down  the  words  of  a  speaker  in  notes  or  writing  [notuE).  The  notarii  were  short-hand 
writers,  and  that  they  used  symbols  of  abbreviation  is  clear  from  many  passages  of  an- 
cient writers ;  tiie  persons  employed  in  this  service  were  often  slaves.  But  tiie  function> 
of  the  modern  notary  public  were  doubtless  derived  from  a  class  of  public  ofHcers,  men- 
tioned under  the  later  Roman  law  by  the  name  of  tubelliones,  whose  business  it  was  to 
draw  up  contracts,  wills,  and  other  legal  instruments  to  be  presented  to  the  courts  of 
law,  or  other  authorities  of  state.  To  make  these  documents  legal  evidence  for  judi- 
cial purposes,  it  was  at  length  found  necessary  to  require  by  law  that  they  should  be 
attested  by  witnesses,  and  that  the  notary  [tahc.Uio)  should  be  present  in  person  at  the 
drawing  up  of  the  document,  and  also  should  affix  his  signature  and  the  date  of  the 
execution.  Under  the  Frankish  kings,  officers  exercising  similar  functions  were  called 
cancellarii  and  notarii.  In  England,  notaries  appear  to  have  been  known  as  public 
officers  before  the  Norman  conquest.  Spelman  cites  some  charters  of  Edward  the 
Confessor  as  being  executed  for  the  king's  chancellor  by  notaries  (Gloss.,  Tit.  Notariiis). 
It  is  certain  that  they  were  employed  at  a  very  early  period  to  attest  and  authenticate 
instruments  of  moment  and  solemnity.  They  arc  mentioned  in  the  statute  of  27  Edw. 
III.  c.  1.  It  is  generally  supposed  that  the  power  of  admitting  notaries  to  practice  was 
vested  in  the  Archbishop  of  Canterbury  by  2.5  Hen.  VIII.  c.  21,  §  4. 

[n]  Baylcy  on  Bills,  c.  7,  ^  2 ;  Chitty  on  Bills,  p.  333.  In  Burke  v.  McKaj',  2 
How.  66,  Storij,  J.  said  that,  in  many  cases,  even  with  regard  to  foreign  bills  of  ex- 
change, the  protest  may,  in  the  absence  of  a  notary,  be  made  by  other  functionaries,  and 
even  by  merchants.  See  also  Read  v.  Bank  of  Kentucky,  1  T.  B.  Mon.  91,  in  which 
case  it  was  held  that  it  was  no  objection  that  a  note  held  by  a  bank  was  protested,  in 
the  absence  of  a  notary,  by  a  private  person  who  was  a  stockholder  in  the  bank,  it  be- 
•ng  sufficient  that  the  witnesses  wore  disinterested.  It  is  not  necessary  for  the  witnesses 
m  such  case  to  subscribe  their  names.  It  was  further  held  in  this  case,  that  a  private 
individual  has  no  right  to  charge  fees  for  protesting.     It  is  held,  however,  that  a  no- 


63-4  NOTES  AND   BILLS.  [CH.  XIV. 

A  notary  public  is  a  public  officer,  recognized  as  such  all  over 
Ihe  commercial  world.  The  instrument  of  appointment  now  in 
use  in  England  declares  that  full  faith  be  given,  "  as  well  in 
judgment  as  thereout,"  to  the  instruments  by  him  to  be  made ; 
and  language  of  the  same  meaning  is  sometimes  used  in  com- 
missions to  notaries  in  the  United  States. 

Very  great  importance  has  always  been  attached  to  the  attesta- 
tion of  a  notary  public,  (o)  He  is  considered  as  receiving  and 
noting  the  evidence  or  statements  brought  before  him  ;  "  to  pro- 
test," signifying  literally  "  to  testify  before."  He  is  regularly 
appointed  and  commissioned,  and  has  his  seal,  which  must  be 
affixed  to  his  official  documents,  (j?) 

tary  who  is  a  stockholder  of  a  bank  cannot  make  an  admissible  protest  of  a  note  for 
the  bank.  Herkimer  County  Bank  v.  Cox,  21  Wend.  119 ;  Bank  v.  Porter,  2  Watts, 
141.  Mr.  Brooke,  in  his  treatise  on  the  office  and  practice  of  a  notary  of  England,  says 
it  does  not  appear  that  there  is  an  usage,  in  the  case  of  a  protest  of  a  foreign  bill  by 
a  private  inhabitant  of  the  place,  to  require  any  witnesses  to  such  protest,  p.  103. 
In  case  of  inland  bills,  it  is  required  by  the  statute  9  &  10  William  III.  c.  17,  that 
the  protest  by  a  private  person  be  made  in  the  presence  of  two  or  more  credible 
witnesses.  See  also  stat.  3  &  4  Anne,  c.  9,  §§  6,  9.  It  is  provided  by  the  commercial 
code  of  France  that  all  protests  for  non-acceptance  or  non-payment  shall  be  made 
by  two  notaries,  or  by  one  notary  and  two  witnesses,  or  by  a  bailiff  and  two  witnesses. 
Art.  173. 

(o)  It  is  stated  in  Burn's  Ecclesiastical  Law,  9th  ed.,  Vol.  III.  p.  11,  that  "  one  notary 
public  is  sufficient  for  tlie  exemplification  of  any  act ;  no  matter  requiring  more  thau 
one  notary  to  attest  it "  ;  and  the  rule  of  the  canon  law  as  to  the  credit  of  a  notary  is  unu3 
notarius  icqui  pallet  duobus  testihus.  Mr.  Brooke  tliinks  it  not  improbable  that  Massingcr, 
the  dramatist,  was  satirically  alluding  to  some  such  rule,  when,  in  the  drama  of  the 
"New  Way  to  Pay  Old  Debts,"  written  before  163.3,  Sir  Giles  Overreach  declares, — 

"  Besides,  I  know  thou  art 

A  public  notary,  and  suoh  stand  in  law 

For  a  dozen  witnes.scs." 

Brooke's  Notary,  chap.  1  ;  Burn's  Ecclesiastical  Law,  Vol.  III.,  Tit.  Not.  Pub. 

(p)  It  is  everywhere  held,  that  it  is  a  sufficient  authentication  of  a  protest  made  in  a 
foreign  country  or  state,  that  it  purports  to  be,  and  apjjarcntly  is,  under  tiie  seal  of  a 
notary.  Anonymous,  12  Mod.  345;  Chitty  on  Bills,  G5.') ;  Townsley  v.  Sumrall,  2 
Pet.  170;  Ilailiday  v.  McDougall,  20  Wend.  81  ;  Carters.  Burley,9  N.  H.  .5.5S;  Crow- 
ley ».  Barry,  4  Gill,  194  ;  Bank  of  Kochcster  v.  Gray,  2  Hill,  227  ;  Wells  i-.  Whitehead, 
15  Wend.  527  ;  Kirksey  ?;.  Bates,  7  Port.  Ala.  529  ;  Fleming  r.  M'Clure,  1  Brcv.  428; 
Bryden  i^.  Taylor,  2  Harris  &  J.  390  ;  Chase  v.  Taylor,  4  id.  54;  Nicholls  c.  Webb,  8 
Wheat.  320  ;  Las  Caygas  ?;.  Larionda,  4  Mart.  La.  283  ;  Boss  r.  Bedell,  5  Duer,  462. 
But  if  the  protest  is  not  made  by  a  notary,  or  is  not  under  seal,  there  must  he  evidence 
of  the  official  character  of  the  officer,  and  of  the  laws  of  the  state  or  country  where  it 
was  made,  showing  that  it  was  duly  made  according  to  the  laws  tiicrc  existing.  Per 
Parker,  C.  J.,  in  Carter  v.  Burley,  9  N.  H.  558,  568 ;  Chanoinc  v.  Fowler,  3  Wend. 
173  ;  Bank  of  Kochcster  v.  Gray,  2  Hill,  227.  And  of  course  where  a  seal  to  the  pro- 
test is  required  by  the  law  of  the  State  where  it  is  made,  a  protest  without  tlic  .seal  uiU 


CH.  XIV.]  PBOTEST.  635 

In  tliG  case  of  foreign  bills,  protested  in  a  country  other  than 
that  in  which  the  suit  is  brought,  full  faith  and  credit  are 
given  to  the  instrument  of  protest ;  and  the  original,  or  a  duly 
certified  copy,  are  admissible  in  evidence  of  the  acts  therein 
stated,  so  far  as  these  acts  are  within  the  scope  of  a  notary's 
official  duty.((^)  In  the  case  of  inland  bills,  and  even  foreign 
bills  which  are  protested  in  the  country  where  suit  is  brought, 
the  protest  is  not  admissible  in  evidence, (r)  unless  the  notary 
has  deceased  since  the  protest  was  made. (5)  In  many  of  our 
States,  however,  this  whole   subject  is  regulated  by  statute. (^) 

not  be  received  in  evidence  as  such.  Tickner  v.  Roberts,  11  La.  14.  It  was  held, 
however,  in  Lambeth  v.  Caldwell,  1  Rob.  La.  61,  that  the  want  of  a  seal  to  the  cer- 
tificate of  a  notary  was  no  objection  to  its  admission  in  evidence  as  proof  of  notice  to 
tlie  indorsers  of  a  note  upon  which  the  action  was  brought.  It  was  said  in  that  case, 
that  there  was  no  law  requiring  a  notary  to  furnish  himself  with  a  seal.  So  also,  in  an 
early  case  in  Kentucky,  it  was  held  that  a  notary's  certificate  of  a  protest  was  sufficient, 
under  the  statutes  of  that  State,  without  a  seal ;  and  the  court  seemed  to  be  of  tho 
opinion  that  such  a  seal  was  not  required  by  the  law  merchant.  Bank  of  Kentucky  v. 
Pursley,  -3  T.  B.  Mon  2.38.  As  to  the  sufficiency  of  a  notarial  seal,  it  is  held  that  one 
stamped  upon  paper  of  sufficient  tenacity  to  retain  the  impression  is  all  that  is  required 
by  the  strictest  rules  of  the  common  law.  Ross  v.  Bedell,  5  Duer,  462  ;  Carter  v. 
Barley,  9  N.  H.  5.58;  Bank  of  Manchester  v.  Slason,  13  Vt.  334  ;  Connolly  ».  Good- 
win, 5  Calif.  220.  But  see  Bank  of  Rochester  v.  Gray,  2  Hill,  227.  See  Kirksey  v. 
Bates,  7  Port.  Ala.  .529,  as  to  the  requisitions  of  notarial  seal  under  the  statute  of  the 
State.  But  a  scrawl  is  not  a  sufficient  authentication,  except  in  States  where  a  scrawl 
or  "  Locus  sigilli"  is  generally  held  to  be  the  equivalent  to  a  seal.  Semhle  per  Parker, 
C.  J.,  in  Carter  v.  Burley,  9  N.  H.  588,  supra,  p.  634,  note  p. 

{(])  Townsley  v.  Sumrall,  2  Pet.  170,  178  ;  Bryden  v.  Taylor,  2  Harris  &  J.  396. 

(r)  Nicholls  v.  Webb,  8  Wheat.  326,  diclum ;  Chesmer  v.  Noyes,  4  Camp.  129. 

(s)  Nicholls  V.  Webb,  8  Wheat.  326. 

(t)  Tliis  is  a  matter  of  statutory  regulation  in  many  of  the  States.  In  New  Hamp« 
shire  it  is  provided  that  "  the  protest  of  any  bill  of  exchange,  note,  or  order,  duly  cer- 
tified by  any  notary  public,  under  his  hand  and  official  seal,  shall  be  evidence  of  tho 
flxcts  stated  in  such  protest,  and  of  the  notice  given  to  the  drawer  or  drawers."  Comp. 
Stats.  1853,  p.  70,  §  3.  This  statute  is  he'd  to  apply  to  protests  of  both  foreign  and 
domestic  bills,  and  whether  made  by  a  notary  resident  in  the  State  or  elsewhere.  The 
protest  is  only  prima  facie  evidence  of  the  facts  stated,  including  the  notice.  Where 
the  notary  certified  that  he  duly  gave  notice  to  the  indorsers,  without  reciting  what  was 
done  to  give  notice,  the  notice  must  be  regarded  prima  facie  to  have  been  personal  and 
actually  given ;  and  the  insertion  of  the  word  duli/  does  not  vitiate  the  protest,  on  the 
ground  that  it  is  a  conclusion  of  law.  These  points  are  decided  in  the  late  case  of  Rush- 
worth  V.  Moore,  36  N.  H.  188.  The  same  points  in  regard  to  notice  were  decided  in 
the  same  way  in  a  recent  case  in  Maine,  Ticonic  Bank  v.  Stackpolc,  41  Maine,  321,  in 
wnich  State  the  same  statutory  provision  existed  until  recently,  it  being  omitted  in 
the  late  revision  of  1857.  See  R.  S.  of  1840,  c.  44,  §  12.  Under  that  statute  it  was 
held  that  the  certificate  was  not  conclusive  evidence  of  the  facts  stated  as  to  the  giving 
of  notice.  Bradley  v.  Davis,  26  Maine,  45.  See  Loud  v.  Merrill,  45  Maine,  516,  521. 
By  the  Revised  Statutes  of  Maine  of  1857,  p.  273,  §  4,  it  is  provided  in  general  terms 


686  NOTES   AND    BILLS.  [CH.  XIV. 

But  while  the  protests  or  certificates  of  protest  of  a  notary 

that  all  copies  or  certificates  granted  by  a  notary,  under  his  hand  and  notarial  seal, 
shall  be  received  as  legal  evidence  of  such  transactions  and  of  all  the  fiicts  therein  con- 
tained. 

In  Connecticut,  it  is  provided  that  protests  of  inland  bills  of  exchange,  and  promis- 
sory notes  protested  without  the  State,  shall  be  admitted  as  prima  facie  evidence  of  the 
facts  therein  stated.     Compilation  of  Stats.  1854,  p.  9-3,  ^  128. 

In  New  York,  Wisconsin,  and  California,  it  is  provided  that  the  certificate  of  a  notary, 
under  his  hand  and  seal  of  office,  of  the  presentment  by  him  of  any  promissory  note  or 
bill  of  exchange  for  acceptance  or  payment,  and  of  any  protest  of  such  bill  or  note  for 
non-acceptance  or  non-payment,  and  of  the  service  of  notice  thereof,  specifying  the 
mode  of  giving  such  notice,  and  the  reputed  place  of  residence  of  the  party  to  whom 
the  same  was  given,  and  the  post-office  nearest  thereto,  shall  be  presumptive  evidence 
of  the  facts  contained  in  such  certificate.  But  in  New  York  it  is  provided  that  tliis  pre- 
sumption sliall  not  apply  to  any  case  in  which  the  defendant  shall  annex  to  his  plea  an 
affidavit  denying  the  fact  of  having  received  notice  of  non-acceptance  or  non-payment 
of  such  bill  or  note  ;  nor  to  any  case  of  a  protest  of  an  inland  bill  of  exchange  or  of  a 
promissory  note  made  by  any  notary  of  that  State,  except  in  case  of  the  death,  insan- 
ity, or  absence  of  the  notary,  so  that  his  personal  attendance  or  his  testimony  cannot  be 
procured. 

In  New  York  and  Wisconsin,  it  is  furtlicr  provided  that  any  note  or  memorandum, 
made  and  signed  by  the  notary  at  the  foot  of  the  protest  or  in  a  record,  shall  in  the 
same  way  be  presumptive  evidence  of  notice  sent ;  and  in  California  it  is  provided  that 
a  certificate  of  a  notary  public,  drawn  from  his  record,  stating  the  protest  and  the  facts 
therein  contained,  shall  be  evidence  of  the  facts  in  like  manner  as  the  original  protest. 
See  R.  S.  of  N.  Y.,  4th  ed..  Vol.  II.  pp.  470,  471,  §§  33-36;  R.  S.  of  Wis.  1858,  c 
12,  §§  4,  6  ;  Woods's  Dig.  of  the  Laws  of  Cal,  1858,  p.  554,  Art.  2848.  Under  these 
statutes  it  is  not  necessary  to  state  the  form  of  the  notice  given,  McFarland  v.  Pico, 
8  Calif.  626  ;  nor  the  hour  of  presentment,  Cayuga  Co.  Bank  v.  Hunt,  2  Hill,  635. 
The  statute  of  New  York,  making  notarial  certificates  evidence,  applies  only  to  pro- 
tests made  within  the  State  by  notaries  of  that  State.  Kirtland  v.  Wanzer,  2  Duer, 
278 ;  Bank  of  Rochester  v.  Gray,  2  Hill,  227  ;  dictum  of  Harris,  J.  to  the  contrary,  in 
Bank  of  Vergennes  v.  Cameron,  7  Barb  143.  And  the  provision  making  the  mem- 
orandum evidence  of  notice  does  not  extend  to  a  statement  of  tlie  presentment  and 
demand  of  a  note  or  bill.     Otsego  Co.  Bank  v.  Warren,  18  Barb.  290. 

In  Pennsylvania,  by  an  act  passed  14th  December,  1854,  the  protests  of  all  notaries 
public,  certified,  according  to  law,  under  their  hands  and  seals  of  office,  in  respect  to 
the  dishonor  of  all  bills  of  exchange  and  promissory  notes,  and  notice  thereof,  may  bo 
received  and  read  in  evidence  as  proof  of  the  facts  therein  stated  ;  and  in  Ohio  the 
instrument  of  protest  of  any  notary  public  appointed  and  qualified  under  the  laws  of 
that  State,  or  the  laws  of  any  other  State  or  Territory  of  the  United  States,  accom- 
panying any  bill  of  exchange  or  promissory  note  wliich  has  been  i)rotestcd  for  non- 
acceptance  or  non-payment  by  such  notary,  shall  be  held  and  received  as  prima  facie 
evidence  of  the  facts  therein  certified.  But  in  both  Pennsylvania  and  Ohio  it  is  pro- 
vided that  any  party  may  be  permitted  to  contradict  by  other  evidence  i\ny  such  certifi- 
cate.    See  Purdon's  Dig.  1857,  j).  1138;  R.  S   of  Ohio,  1854,  c.  7.5,  ^  6. 

The  notarial  certificate  of  protest  is  evidence  of  the  facts  therein  set  forth,  although 
the  notary,  when  examined,  lias  no  recollection  of  them ;  for  the  statute  makes  the 
certificate  sufficient  evidence  of  the  facts  therein  certified,  in  the  absence  of  contradictory 
proof.     Shcrer  v.  Easton  Bank,  33  Penn.  State,  134. 


OH.  XIV.]  PROTEST.  637 

public  are  admitted  in  evidence,  and  this  evidence  is  entitled  to 


In  Maryland,  Virginia,  North  Carolina,  Tennessee,  and  Iowa,  it  is  provided,  in  sub- 
stance, that  a  |)rotcst  duly  made  by  a  notary  public  of  a  bill  of"  exchange,  whether  for- 
eign or  inland,  for  non-acceptance  or  non-payment,  or  of  a  promissory  note  for  non- 
payment, shall  be  jorma  yucj'e  evidence  of  such  non-payment  or  non-acceptance,  and 
that  presentment  was  made  and  notice  given  in  the  manner  stated.  Dorsey's  Laws  of 
Md.,  Vol.  II.  p.  12.')7,  c.  253,  Act  of  1837  ;  Graham  v.  Sangston,  1  Md.  59;  Code  of  Va. 
1849,  c.  144,  §  7  ;  R.  Code  of  N.  Car.  1854,  c.  13,  ^  9 ;  Code  of  Tcnn.  1858,  H  1"99, 
1800;  Code  of  Iowa,  1851,  §  2414.  In  Tennessee,  it  is  further  provided,  that,  after  the 
notary's  death,  his  record  of  notice  of  dishonor  shall  be  prima  facie  evidence  of  the  fact. 
Code,  supra,  ^  1801. 

The  design  of  the  statute  of  Maryland,  as  to  the  mode  of  proof  of  demand  and 
notice,  was  to  place  foreign  and  inland  bills  upon  the  same  footing,  and,  as  regarded 
inland  bills  and  notes,  to  dispense  with  the  necessity  of  adducing  oral  proof  of  demand 
and  notice,  by  substituting  therefor  the  protest  of  the  notary  ;  and  the  protest  is  suffi- 
cient in  form,  if  it  states  in  substance  a  denuind  and  notice.  Per  Archer,  C.  J.,  in 
Barry  v.  Crowley,  4  Gill,  194. 

In  Michigan,  notaries  public  are  empowered  to  demand  acceptance  of  foreign  and 
inland  bills  of  exchange  and  promissory  notes,  and  to  protest  the  same ;  and  his  certifi- 
cate, under  his  hand  and  seal,  of  the  official  acts  done  by  him  is  made  presumptivo 
evidence  of  the  facts  contained  in  it ;  but  such  certificate  is  not  notice  of  non-accept- 
ance or  non-payment  in  any  case  in  which  a  defendant  shall  annex  to  his  plea  an 
affidavit  denying  the  fact  of  having  received  such  notice.  Compiled  Laws  of  1857, 
Vol-  L  Chap.  X.  §§  112,  113. 

In  Minnesota,  it  is  made  the  duty  of  a  notary,  in  protesting  bills  and  notes,  to  give 
notice  of  protest,  and  to  certify,  in  the  instrument  of  protest,  the  time  and  manner  of 
the  service  of  such  notice  ;  and  the  protest  of  any  notary  public,  appointed  under  the 
laws  of  that  State,  or  the  laws  of  any  other  State  or  Territory  of  the  United  States,  is 
made  prima  facie  evidence  of  the  facts  therein  certified,  provided  that  any  party  may 
contradict  by  other  evidence  such  certificate.  The  record  of  the  protest,  or  a  certified 
copy  of  the  record,  is  made  evidence  in  the  same  way.  Compiled  Statutes  of  1859, 
p.  134,  §§  5,  6. 

In  Indiana,  the  official  certificate  of  a  notary  public,  attested  by  his  seal,  are  pre- 
sumptive evidence  of  the  facts  therein  stated,  in  cases  where,  by  law,  he  is  authorized 
to  certify  such  facts  ;  and  he  is  authorized  to  do  all  such  acts  which,  by  common  law 
and  the  custom  of  merchants,  a  notary  is  authorized  to  do.  R.  S.  1852,  Vol.  I.  p.  378. 
c.  76,  §§  5,  6.  Another  statute  in  similar  terms  declares  that  the  certificates  or  instru- 
ments purporting  to  be  the  official  act  of  a  notary  public  of  that  State,  or  of  any  other 
State  or  Territory  of  the  United  States,  and  purporting  to  be  under  the  seal  and  signa- 
ture of  such  notary,  shall  be  received  as  presumptive  evidence  of  the  official  character 
of  such  instrument,  and  of  the  fiicts  therein  set  forth.  Id.,  Vol.  II.  p  91,  §  281. 
Under  these  statutes  it  is  lield  that  a  protest  of  a  promissory  note,  with  a  certificate  of 
notice  made  by  a  notary  of  another  State,  is  admissible  evidence,  without  proof  of  its 
execution.  Shanklin  v.  Cooper,  8  Blackf.  41.  This  decision  was  affirmed  in  Turner 
V.  Rogers,  8  Ind.  139,  where  it  was  held,  that,  so  far  as  presentment,  demand  of  pay- 
ment, and  the  transmitting  of  notice  are  concerned,  the  protest  of  a  promissory  note  in 
such  case  is  evidence;  and  the  court  say,  that  the  universal  practice  of  the  commercial 
community  indicates  the  propriety  of  this  rule.  So  in  case  of  a  bill  of  exchange. 
Oickerson  v.  Turner,  12  Ind.  223. 

In  South  Carolina,  it  is  provided  that,  where  the  notary  who  has  made  protest  of  any 

VOL.  I.  54 


638  NOTES   AND   BILLS.  [CH.  XIV. 

much  weight,  it  is,  however,  open  to  rebutter.    The  truth  of  the 


inland  bill  or  promissory  note  is  dead,  or  resides  out  of  the  district  in  which  such  note 
or  bill  is  sued,  his  protest  shall  be  received  as  sufficient  evidence  of  notice  in  any  action 
against  any  parties  to  the  bill  or  note.     Statutes  at  Large,  Vol.  VI.  p.  182. 

In  Georgia,  certificate  and  protest  by  notaries  public,  under  tlieir  hand  and  seal,  for  the 
non-acceptance  of  any  bill  of  exchange,  or  for  the  non-payment  thereof,  or  of  any  note, 
are  prima  facie  evidence  of  the  focts  therein  stated ;  provided  that  either  party  may 
have  the  benefit  of  the  testimony  of  such  notary  if  necessary,  and  provided  that  either 
a  copy  or  the  original  of  such  protest  is  filed  in  court.  Cobb's  New  Dig.  1851,  VoL  I. 
p.  273,  §  27. 

In  Kentucky,  it  is  declared  that  the  notarial  protest,  under  seal,  of  the  non-acceptance 
or  non-payment  of  a  bill,  shall  be  evidence  of  its  dishonor;  but  the  protest  mav  bo 
disproved.     R.  S.  1852,  p.  194,  §  12. 

In  Arkansas,  it  is  declared  that  a  protest  made  by  a  notary  public,  under  his  hand 
and  seal  of  office,  shall  be  allowed  as  evidence  of  the  facts  therein  contained.  Dig.  of 
Stats.  1858,  c.  25,  §  12.  Under  this  statute  it  is  held  that  the  certificate  of  a  notary 
who  protested  a  bill,  that  he  forwarded  due  notice  of  protest,  though  under  his  notarial 
seal,  is  no  evidence  of  the  fact.  Real  Estate  Bank  v.  Bizzell,  4  Ark.  189.  There 
must  be  actual  proof  of  notice,  according  to  the  law  merchant.  Sullivan  v.  Deadman, 
19  Ark.  484. 

In  Missouri,  a  notarial  protest  is  evidence  of  a  demand  and  refusal  to  pay  a  bill  of 
exchange,  or  negotiable  promissory  note,  at  the  time  and  in  the  manner  stated  in  such 
protest.     R.  S.  1855,  Vol.  I.  p.  298,  c.  18,  §  20. 

In  Illinois,  it  is  made  the  duty  of  notaries  public  to  protest  bills  and  notes,  and  to 
give  notice  of  the  dishonor  of  the  same ;  and  to  keep  a  correct  record  of  all  such 
notices,  and  of  the  time  and  manner  in  which  the  same  have  been  served,  of  the 
names  of  the  persons  to  whom  directed,  and  of  the  description  and  amount  of  the 
instrument  protested,  which  record  is  competent  evidence  to  prove  such  notice.  Com- 
piled Statutes  of  1858,  Vol.  II.  p.  795,  ^§  4,  5. 

In  New  Jersey,  notaries  are  required,  upon  protesting  any  foreign  or  inland  bill  or 
promissory  note,  to  record  the  time  and  place  of  the  demand,  and  upon  whom  it  was 
made,  with  a  copy  of  the  notice  sent,  how  it  was  served,  and  when,  and  if  sent,  in  what 
manner,  to  whom,  and  where,  and  when  put  into  the  post-office.  Upon  the  death  or 
absence  of  the  notary,  this  record,  or  a  certified  copy  thereof,  is  competent  evidence  of 
the  matters  contained  in  such  record.     Nixon's  Dig.  1855,  p.  668,  §§  6,  7,  8. 

In  Mississippi,  it  is  the  duty  of  notaries  public  to  make  a  record  of  all  tlicir  proceed- 
ings in  relation  to  the  protest  of  any  bill  or  note,  of  whom,  when,  and  where  the 
demand  was  made,  and  of  the  notice  given,  and  in  what  manner;  and  such  record,  or 
a  copy  of  the  .same,  verified  by  oath,  is  competent  evidence  of  the  facts  therein  stated 
touching  the  dishonor  of  such  bill  or  note.     Rev.  Code,  1857,  pp.  413,  519. 

In  Louisiana,  it  is  the  duty  of  notaries  to  keep  a  record  of  protests  of  bills  and  notes, 
of  the  notices  given  by  them,  the  date  of  the  notices,  and  the  maimer  in  wliich  they 
were  served  or  forwarded,  which  record  is  legal  proof  of  the  notices.  Notaries  are  also 
authorized  to  make  mention  of  the  maimer  and  circumstances  of  the  demand  in  their 
protests,  and  by  certificates  added  thereto  to  state  the  manner  in  which  any  notices  of 
protest  were  served  or  forwarded  ;  and,  whenever  they  shall  have  so  done,  a  certified 
copy  of  such  protest  and  certificate  is  evidence  of  all  matters  therein  stated.  R.  S. 
1856,  p.  45,  §5  8,  9. 

In  Tcxa^,  liie  holders  of  any  bill  of  exchange  or  jiromissory  note  may  fix  the  liabil- 
ity of  any  drawer  or  indorser  of  the  bill  or  indorser  of  the  note,  without  any  protest  or 


CH.  XIV.]  PROTEST.  639 

certificate  may  be  disproved  by  evidence. (w)  And  the  certifi- 
cate is  not  itself  even  evidence  of  collateral  facts.  Thns  a 
statement  that  the  drawer  refused  to  accept  because  he  had  no 
funds,  is  no  evidence  whatever  of  want  of  funds. (y)  And  even 
where  the  statute  of  the  State  made  the  certificate  of  protest 
evidence  of  all  the  matters  it  contains,  and  such  a  certificate 
stated  that  the  drawee  expressed  his  willingness  to  pay  the  bill 
in  bank-notes  of  a  particular  description,  it  was  held  that  this 
was  no  evidence  of  such  acknowledgment. (?«;) 

So  a  recital,  in  a  foreign  notarial  certificate,  that  the  notary 
had  served  the  protest  on  tlie  acceptor,  in  his  own  name,  and  as 
agent  of  the  drawer,  is  no  evidence  of  the  agency  in  an  action 
against  the  drawer,  (.•r) 

It  has,  however,  been  held,  not  only  that  the  notarial  certifi- 
cate is  prima  facie  evidence  that  the  demand  was  duly  made  of 
the  principal  party,  where  it  stated  that  the  demand  was  made  ; 
but  also,  where  it  stated  that  the  demand  was  made  of  an  "  at- 
torney in  fact,"  or  of  a  clerk  of  the  acceptor  or  maker,  that  it 
was  prima  facie  evidence  that  the  attorney  or  agent  was  prop- 
erly authorized  to  receive  the  demand  and  refuse  payment. (//) 

If  paper  be  made,  or  drawn,  or  accepted,  or  indorsed  in  one 


notice,  by  instituting  a  suit  against  the  acceptor  of  the  bill  or  maker  of  the  note  at 
the  next  term  of  the  District  Court.  And  so  in  case  of  the  non-acceptance.  But 
instead  of  this,  protest  may  be  made  of  the  bill  or  note  ;  upon  wiiich  it  is  the  duty 
of  the  notary  to  give  notice  thereof,  and  to  note  in  his  protest  and  notarial  record  on 
whom,  when,  and  how  the  notice  was  served  ;  and  such  protest,  or  a  copy  of  the  rec- 
ord, under  his  hand  and  seal,  is  evidence  of  the  facts  therein  set  forth.  Oldham  and 
White's  Dig.  1859,  p.  52,  Arts.  94,  96,  97,  98.  The  provision  which  dispenses  with 
protest  and  notice  also  dispenses  with  a  demand.    Sydnor  v.  Gascoigne,  1 1  Texas,  449. 

[u]  The  truth  of  the  statements  in  the  certificates  may  be  disproved.  Gardner  v. 
Bank  of  Tennessee,  1  Swan,  420  ;  Union  Bank  i'.  Fowlkcs,  2  Sneed,  555.  In  Ricketts 
V.  Pendleton,  14  Md.  320,  it  was  declared  that,  although  the  certificate  of  the  notary  is 
made,  by  the  act  of  1837,  prima  facie  evidence,  yet,  like  all  other  evidence,  it  must  be 
submitted  to  the  jury,  and  passed  upon  by  them.  Such,  no  doubt,  would  be  the  ruling 
of  the  courts  in  the  United  States  generally,  and  wo  should  say  universally. 

(v)  Dumont  v.  Pope,  7  Blackf.  367. 

(w)  Maccoun  v.  Atchafalaya  Bank,  13  La.  342. 

\x)  Coleman  v.  Smith,  26  Penn.  State,  255. 

(y)  Phillips  V.  Poindexter,  18  Ala.  579  ;  Stainback  v.  Bank  of  Virginia.  11  Gratt 
260.  And  so  in  Whaley  v.  Houston,  12  La.  Ann.  585,  a  notary  having  certified  that  ho 
•'  had  presented  the  draft  to  a  clerk  of  the  drawees  at  their  ofiSce,  said  drawees  not  being 
in,  and  demanded  acceptance  thereof,  and  was  answered  that  the  same  would  not  be 
accepted  "  it  was  held  that  this  was  a  suflScient  presentment,  the  defendants  being  mer- 
chants having  a  counting-room  in  New  Orleans. 


640  NOTES   AND    BILLS.  [CH.  XIV. 

country,  and  be  payable  in  another,  the  question  whether  de- 
mand and  protest  must  be  made,  and  notice  given  according  to 
the  law  of  the  place  where  the  paper  is  payable,  or  according 
to  that  where  the  signatures  are  made,  has  been  much  dis- 
cussed, and  may  not  now  be  certain.  We  think  the  true  rule  is 
this.  It  being  determined  at  wliat  time  the  paper  is  mature 
and  payable,  then  the  protest  should  be  made  by  the  law  of 
the  place  ivhere  the  paper  is  payable,  and  therefore  ivliere  the 
protest  is  to  be  made.  And  the  manner  of  making  the  demand 
and  protest  must  be  governed  by  the  same  law.  Then  as  to  the 
notice,  this  should  be  given  by  the  notary  making  the  protest, 
and  may  be  given  by  him  according  to  the  law  which  governs 
his  proceedings,  or  the  law  of  his  own  place,  or  the  place  where 
the  paper  is  payable.  If,  however,  distant  parties  (wlio  may 
receive  their  notice  from  the  notary)  transmit  notice  according 
to  the  law  of  the  place  of  their  residence,  in  which  tliey  put 
their  names  to  the  paper,  this  notice  would  be  sufficient.  And 
if  the  notary  himself,  knowing  the  law  of  the  foreign  country  to 
which  lie  sends  notice  to  persons  who  there  become  parties  to 
the  paper,  should  conform  to  that  law,  we  should  say  that  the 
notice  would  be  sufficient. (2:) 


(s)  Carter  v.  Union  Bank,  7  Humph.  548 ;  Bank  of  Rochester  v.  Gray,  2  Hill, 
227 ;  Ellis  v.  Commercial  Bank  of  Natciiez,  7  How.  Miss.  294 ;  Carter  v.  Barley, 
9  N.  H.  5.i8  ;  Onondaga  Co.  Bank  v.  Bates,  3  Hill,  53;  Grafton  Bank  v.  Moore,  14 
N.  H.  142;  Ross  v.  Budell,  5  Duer,  462;  Shankliii  v.  Cooper,  8  Blackf  41  ;  Turner  r. 
Rogers,  8  Ind.  139  ;  Chitty  on  Bills,  333.  "By  the  common  law,"  says  Story,  "the 
protest  is  to  be  made  at  the  time,  in  the  manner,  and  by  the  persons  prescribed,  in 
the  place  wliere  the  bill  is  payable.  But  as  to  the  necessity  of  makinj.^  a  demand  and 
protest,  and  the  circumstances  under  which  notice  may  be  required  or  dis])enscd  with, 
these  are  incidents  of  the  original  contract,  which  are  governed  by  the  law  of  tlie  place 
where  the  bill  is  drawn.  They  constitute  implied  conditions,  upon  which  the  liability 
of  the  drawer  is  to  attach,  according  to  the  lex  loci  contractus."  Conflict  of  Laws,  ^  360. 
A  recent  English  writer  upon  the  conflict  of  laws,  Mr.  Westlakc,  says  :  "  I  cinnot 
altogether  agree  with  this  doctrine.  There  is,  no  doubt,  a  sound  distinction  between 
the  events  on  the  occurrence  of  which  the  drawer  or  indorser  undertakes  to  pay,  and 
the  notice  given  to  him  of  their  occurrence  ;  but  the  making  a  demand  and  jirotcst, 
when  ncccssiK-y  by  the  law  of  the  place  of  payment,  sliould,  I  think,  rank  among  the 
former  no  less  than  the  dishonor  itself;  since,  if  these  formalities  be  omitted,  the  drawer 
may  be  impeded  in  the  exercise  of  his  remedies  against  the  acceptor.  Besides,  if  the 
necessity  of  demand  and  protest  were  determined  by  difTcrent  laws  for  tlie  drawer  and 
tlie  several  indorsers,  it  might  easily  happen  that  one  of  those  parties  was  made  liable, 
without  iieing  able  to  recover  over  from  a  previous  one."  The  same  author  thinks 
that  Story  has  given  elsewhere  a  more  correct  statement  of  the  rule,  —  in  his  Conflict 
of  Laws,  §  260.     "  But  the  suflliciency  of  the  notice  after  completion  of  the  protest,  if 


CH.  XIV.]  PROTEST.  641 

We  have  said  that  the  demand  may  perliaps  be  made  by  a 
duly  authorized  clerk  of  the  notary.  But  the  usual  way  is  for 
the  notary  to  present  the  bill  himself.  And  the  authorities  in- 
dicate that  he  must  do  so  to  make  his  certificate  valid. (a) 


any,  may  well  be  tested  by  the  law  of  the  place  of  drawing  or  indorsing,  as  a  condition 
implied  in  the  contract,  and  which  a  regard  for  the  contractor's  own  security  docs  not 
refer  to  any  other  law."  Westlakc  on  Private  International  Law,  Art.  225.  The 
latter  point,  that  the  sufficiency  of  notice  is  governed  by  the  law  of  the  place  of  draw- 
ing or  indorsing,  is  expressly  held  in  the  case  of  Cook  v.  Litchfield,  5  Seld.  279,  290. 
Contra,  see  Rothschild  v.  Currie,  1  Q.  B.  43,  which  was  an  action  on  the  dishonor  of  a 
bill  drawn  in  England  on  a  French  iiousc,  and  made  payable  in  France,  where  it  was 
protested.  The  defendant  had  indorsed  the  bill  in  England  ;  and  it  was  held  that  it 
was  snfKcient  that  he  had  received  such  notice  of  the  dishonor  and  protest  as  was 
required  by  the  law  of  France.  Sec  Allen  v.  Kemble,  6  Moore,  P.  C.  314.  Shanklin 
V.  Cooper,  8  Blackf.  41,  is  in  accordance  with  Rothschild  v.  Currie. 

(a)  The  authorities  generally  indicate  that  the  protest  must  be  made  by  the  notary 
himself,  and  not  by  his  clerk  or  agent.  Leftley  v.  Mills,  4  T.  R.  170  ;  Bayley  on  Bills, 
210;  Chitty  on  Bills,  459;  Sacrider  v.  Brown,  3  McLean,  481  ;  Chenowith  v.  Cham- 
berlin,  6  B.  Mon.  60  ;  Bank  of  Kentucky  v.  Garey,  id.  626  ;  Carter  v.  Union  Bank,  7 
Humph.  548 ;  Carmichael  v.  Bank  of  Pennsylvania,  4  How.  Miss.  567  ;  State  Bank  of 
Indiana  v.  Hayes,  3  Ind.  400 ;  Onondaga  Co  Bank  v.  Bates,  3  Hill,  53.  In  the  latter 
case  the  notarial  certificate  of  protsst  stated  that  the  officer  caused  the  note  to  be  pre- 
sented, &c.  Nelson,  C.  J.,  delivering  the  opinion  of  the  court,  said,  that  the  fair  inference 
to  be  drawn  from  the  language  of  the  certificate  was,  that  the  note  was  presented  by 
the  clerk  of  the  notary,  or  some  third  person ;  and  he  held  that  the  duties  of  a  notary 
in  presenting  notes  and  bills  could  not  be  thus  delegated,  and  that  the  certificate  was 
insufficient.  This  decision  was  affirmed  in  Hunt  v.  Maybce,  3  Seld.  266,  and  also  in 
Warnick  v.  Crane,  4  Denio,  460.  See  also  Stewart  v.  Allison,  6  S.  &  R  324  ;  Ellis 
V.  Commercial  Bank  of  Natchez,  7  How.  Miss.  294  ;  Sheldon  v.  Benham,  4  Hill,  129. 
Where  it  was  in  proof  that  the  clerk  of  the  notary  made  the  demand,  and  the  protest 
stated  that  the  notary  himself  made  it.  the  protest  was  held  inadmissible,  becau.se  false. 
In  this  case  the  clerk  demanded,  and  in  his  deposition  declared  that  he  made  the  demand 
and  the  notary  made  the  protest.  Held  no  sufficient  evidence  of  a  legal  demand.  Smith 
V.  Gibbs,  2  Smedes  &  M.  479.  In  Nelson  v.  Fotterall,  7  Leigh,  179,  this  question  was 
examined  at  length,  and  the  opinion  expressed  that  a  demand  by  a  clerk  of  a  notary  is 
regular.  See  Atwell  v.  Grant,  11  Md.  101.  Mr.vChitty  remarks,  that  the  observation  of 
Buller,  J.,  in  Leftley  v.  Mills,  4  T.  R.  1 70,  that  the  nmary  must  make  the  demand  in  per- 
son, was  a  mere  dictum,  as  far  as  relates  to  the  custom  of^ierchants  or  to  foreign  bills,  for 
the  case  arose  upon  an  inland  bill,  under  the  statute  9  >&.  10  Wm.  Ill ,  allowing  such 
protest;  and  he  further  remarks,  that  the  practice  of  notaries  in  London  and  Liverpool 
appears  to  be  in  direct  opposition  to  the  supposed  necessity  for  the  notary  himself  de- 
manding payment.  A  correspondence  took  place  upon  this  subject,  ■\yhich  is  stated  in 
Mr.  Chitty's  work  on  Bills,  p.  459.  That  it  is  sufficient  for  the  clerk  of  the  notary 
to  make  the  presentment  is  fmplied  in  Poole  v.  Dicas,  1  Bing.  N.  C.  649,  1  Scott, 
600,  in  the  Court  of  Common  Picas,  although  the  point  was  not  directly  before  the 
court.  See  Sutton  v.  Gregory,  Peake,  Add.  Cas.  150,  where  evidence  of  an  entry  in  a 
notary's  book  by  a  clerk  since  deceased  was  admitted  to  prove  the  presentment  of  the 
bill.  In  Wilkins  v.  Jadis,  2  B.  &  Ad.  188;  in  Garnett  v.  Woodcock,  1  Stark.  N.  P. 
475,  6  Maule  &  S.  44 ;  in  Triggs  v.  Newnham,  1  Car.  &  P.  631,  10  Moore,  249 ;  and  in 

Vol.  I.— 2  Q  54  * 


642  NOTES   AND   BILLS.  [CH.  XIV. 

Pj-otest  is  necessary,  by  the  universal  law  merchant,  in  the 
case  of  foreign  bills. (6)  It  has,  indeed,  been  distinctly  asserted 
that  it  is  the  only  legal  evidence  of  notice  in  case  of  the  dis- 
honor of  a  foreign  bill.(c)  In  this  respect,  our  States  would 
undoubtedly  be  considered  as   foreign  to  each  other,  (c?)     And 

Philpott  V.  Bryant,  3  Car.  &  P.  244,  the  plaintiff  recovered,  on  the  evidence  of  the 
presentment  by  the  clerks  of  the  notaries,  this  point  not  being  raised.  Mr.  Brooke  de- 
clares his  knowledge  of  the  custom  of  presentment  by  notaries'  clerks  for  more  than 
forty  years,  and  he  gives  an  extended  correspondence  with  notaries  and  business  men 
in  England,  which  is  to  the  same  effect  (Notary,  Appendi.x  No.  14).  A  distinction 
has  been  taken  in  some  cases  between  a  presentation  by  a  clerk  of  a  notary  and  one  by 
his  deputy ;  and  where,  as  in  New  Orleans,  the  notary  is  authorized  by  law  to  employ 
a  sworn  deputy  to  assist  liim,  a  protest  by  the  deputy  is  good,  he  being  clothed  by  the 
appointment  with  an  official  character,  in  the  same  manner  as  a  deputy  under  a  sheriff. 
Bank  of  Kentucky  v.  Garey,  6  B.  Mon.  626  ;  Chenowith  v.  Chamberlin,  id.  60;  Carter 
V.  Union  Bank,  7  Humph.  548.  Tlie  notaries  of  New  Orleans  are  autliori/ed  to  ap- 
point one  or  more  deputies  to  assist  them  in  making  protests  and  delivering  notices. 
R.  S.  1856,  p.  391,  §  19.  See  also  McClane  v.  Fitch,  4  B.  Mon.  599.  In  Burke  i'. 
McKay,  2  How.  66,  72,  Story,  J.  said,  that  "  where,  as  in  Mississippi,  a  justice  of  the 
peace  is  authorized  by  positive  law  to  perform  the  functions  and  duties  of  a  notarj', 
there  is  no  ground  to  say  that  his  act  of  protest  is  not  equally  valid  with  tliat  of  a 
notary.     Quoad  hoc,  he  acts  as  a  notary."     See  also  Bailey  v.  Dozier,  6  How.  23,  29. 

{h)  Although  a  protest  is  a  mere  matter  of  form,  it  has  become,  by  tl>e  custom  of 
mercliants,  a  "  part  of  the  constitution  "  of  a  foreign  bill.  Per  Holt,  C.  J.,  in  Borough 
V.  Perkins,  1  Salk.  131,  2  Ld.  Raym.  992,  6  Mod.  80.  See  Gale  v.  Walsh,  5  T.  R. 
239  ;  Orr  v.  Maginnis,  7  East,  359. 

(c)  Per  Lord  Mansfield,  in  Salomons  v.  Stavely,  3  Doug.  298.  Noting  for  non- 
acceptance  without  protest  is  not  sufficient.  Rogers  v.  Stevens,  2  T.  R.  713,  though 
there  be  a  subsequent  protest  for  non-payment.  Id.,  and  Orr  xi.  Maginnis,  7  East,  359. 
So  indispensable  is  this  formal  notice  of  the  non-acceptance  or  non-payment  of  a  for- 
eign bill  of  exchange,  that  no  other  evidence  will  supply  the  place  of  it,  and  no  part  of 
the  facts  requisite  to  the  protest  can  be  proved  aliunde.  Carter  v.  Union  Bank,  7 
Humph.  548  ;  Gardner  v.  Bank  of  Tennessee,  1  Swan,  420  ;  Union  Bank  v.  Hyde,  6 
Wheat.  572.  But  notice  of  dislionor  may  be  proved  indci)cndently  of  the  notarial  act. 
Bank  at  Decatur  )'.  Hodges,  9  Ala.  631.  And  at  common  law,  it  is  said  that  this  is 
the  only  way  of  proving  notice.  Rives  v.  Parmlcy,  IS  Ala.  256  ;  Williams  v.  Putnam, 
14  N.  II.  540.  In  France,  a  protest  is  essential  in  case  of  the  dishonor  of  inland  as 
well  as  foreign  bills,  and  of  promissory  notes.  Trimbey  v  Vignier,  I  Bing.  N.  C.  151, 
4  Mooro  &  S.  695;  Chitty  on  Bills,  170.  And  so  in  Scotland  and  the  commercial 
nations  of  Continental  Europe  a  protest  is  indispensable  upon  the  dishonor  of  inland 
bills  and  promissory  notes,  and  in  this  respect  they  arc  not  distinguished  from  foreign 
bills.  Thomson  on  Bills,  c.  6,  §  2,  pp.  442,  443,  2d  ed  ;  Pardcs.  Droit  Comm.,  Tom. 
2,  Art.  479,  480 ;  Story  on  Xotes,  ^  298 ;  Commercial  Code  of  France,  Art.  187. 

(d)  This  is  now  well  established.  Buckner  v.  Finlcy,  2  Pet.  586  ;  Dickins  v.  Beal, 
10  id.  572  ;  Bank  of  U.  S.  ».  Daniel,  12  id.  32,  54  ;  Lonsdale  v.  Brown,  4  Wash.  C.  C. 
86;  PlKJcnix  Bank  v.  Hussey,  12  Pick.  483  ;  Brown  v.  Ferguson,  4  Leigh,  37  ;  Rico  v. 
Hogan,  8  Dana,  133;  Halliday  v.  McDougall,  20  Wend.  81  ;  Wells  v.  Whitehead,  15 
Wend.  527  ;  Carter  v.  Burley,  9  N.  H.  558  ;  Grafton  Bank  v.  Moore,  14  N.  H.  142; 
Duncan  v.  Course,  1   Const.  R.  100:  Abom  v.  Bosworth,  1  R.  I  401  ;  Ticonic  Bank 


CH.  XIV.]  PROTEST.  643 

this  would  be  held,  not  only  when  the  drawer  and  drawee  were 
in  different  States,  but  when  both  resided  in  the  same  State,  and 
the  bill  was  payable  in  another,  (e)  In  some  of  our  States,  pro- 
test of  an  inland  bill  is  made  necessary  by  statute,  for  the 
recovery  of  damages. (/)  But  otherwise  protest  of  inland  bills 
and  promissory  notes  is  not  known  to  the  \sLW.{g')     It  is,  how- 


V.  Stackpole,  41  Miiine,  302  ;  llobinson  v.  Johnson,  1  Misso.  434.  In  accordance  with 
these  iiuthorities  is  the  doctrine  of  Da  Costa  v.  Cole,  Skin.  272,  pi.  1,  that  a  bill  drawn 
in  Ireland  upon  Enj^land  is  to  be  considered  as  a  foreign  bill.  See  also  Chaters  v. 
Bell,  4  Esp.  48 ;  Mahoney  v.  Ashlin,  2  B.  &  Ad.  478.  On  the  same  principle  it  is 
considered  necessary,  and  it  is  the  custom,  to  protest  bills  drawn  in  Scotland  or  the 
Isle  of  Man  upon  England.     Brooke's  Notary,  177. 

(e)  The  argument  from  convenience  is  as  strong  in  one  case  as  in  the  other.  Grafton 
Bank  v.  Moore,  14  N.  H.  142  ;  Freeman's  Bank  v.  Perkins,  18  Maine,  292. 

{/)  See  supra,  p.  635,  note  t. 

(<))  That  a  protest  of  an  inland  bill  is  not  required  by  the  law  merchant,  see  Union 
Bank  w.  Hyde,  6  Wheat.  572 ;  NichoUs  v.  Webb,  8  id.  326 ;  Young  v.  Bryan,  6  id.  146; 
Bailey  v.  Dozier,  6  How.  23 ;  Smith  v.  Little,  10  N.  H.  532;  Taylor  v.  Bank  of  Illi- 
nois, 7  T.  B.  Mon.  576 ;  Bank  of  U.  S.  v.  Leathers,  10  B.  Mon.  64 ;  Lawrence  r.  Ral- 
ston, 3  Bibb,  102;  Murry  v.  Clayborn,  2  id.  300;  Turner  v.  Greenwood,  4  Eng.  Ark. 
44 :  Hubbard  v.  Troy,  2  Ired.  134 ;  McMurchey  v.  Robinson,  10  Ohio,  496. 

In  England,  a  protest  on  inland  bills  of  a  certain  description  was  allowed  by  statute 
of  9  &  10  William  III.  c.  17,  and  3  &  4  Anne,  c.  9  ;  and  it  was  formerly  supposed 
that  a  protest  on  such  bills  was  necessary  in  order  to  enable  the  holder  to  recover  inter- 
est, but  it  is  now  settled  that  it  is  not  essential  for  that  purpose.  Windle  v.  Andrews, 
2  B.  &  Aid.  696  ;  2  Starkie,  425  ;  Chitty  on  Bills,  334. 

In  Mississippi,  domestic  bills  drawn  on  and  payable  in  that  State,  for  the  sum  of  S  20 
or  upwards,  are  required  to  be  protested  in  like  manner  as  foreign  bills,  but  no  damages 
shall  accrue.  R.  C.  1857,  p.  356.  Protest  of  inland  bills  is  expressly  allowed  by  statute 
in  several  of  the  United  States.  Supra,  p.  635,  note  t.  That  a  protest  of  a  promis- 
sory note  is  not  necessary,  though  made  in  one  State  and  payable  in  another,  see  Kirt- 
land  V.  Wanzer,  2  Duer,  278  ;  Smith  v.  Ralston,  1  Morris,  Iowa,  87  ;  Young  v.  Bryan, 
6  Wheat.  146;  Bay  v.  Church,  15  Conn.  15;  Payne  v.  Winn,  2  Bay,  374;  Smith  v. 
Little,  10  N.  H.  526 ;  City  Bank  r.  Cutter,  3  Pick.  414  ;  Evans  v.  Gordon,  8  Port.  Ala. 
142;  Smith  v.  Gibbs,  2  Smedes  &  M.  479;  Piatt  v.  Drake,  1  Doug.  Mich.  296  ;  Pink- 
ham  V.  Macy,  9  Met.  174;  Coddington  v.  Davis,  1  Comst.  186,  3  Denio,  16;  Burke  v. 
McKay,  2  How.  66  ;  Parke  v.  Lowrie,  6  Watts  &  S.  507 ;  McFarland  v.  Pico,  8  Calif.  626. 
But  although  it  is  not  necessary  to  prove  the  dishonor  of  a  note  by  protest,  it  does  not 
follow  that  it  may  not  be  proved  in  that  way.  In  Carter  v.  Burley,  9  N.  H.  558,  Parker, 
C.  J.  seemed  inclined  to  the  view  that  a  promissory  note,  made  by  a  resident  of  one 
State,  and  payable  to  a  person  residing  in  another,  and  indorsed  so  that  it  can  be  re- 
garded as  a  bill,  should  be  deemed  a  foreign  bill  so  far  as  to  admit  the  protest  as  evi- 
dence in  itself;  but  the  decision  of  this  i)oint  was  expressly  waived.  This  point  was 
again  alluded  to  in  Smith  v.  Little,  10  N.  H.  526,  531 ;  and  finally  the  point  was 
brought  directly  before  the  same  court  in  Williams  v.  Putnam,  14  N.  H.  540,  and  the 
same  eminent  judge  declared  that  the  court  had  no  hesitation  in  adopting  the  conclu- 
sions to  which  the  reasoning  in  those  cases  leads.  "Each  indorsement  of  a  bill  is  in 
efFecl  a  new  bill,  drawn  by  the  indorscr  upon  the  acceptor;  and  the  similarity  between 


344  NOTES   AND   BILLS.  [CH.  XIV. 

ever,  very  common  in  practice,  and,  as  has  been  said,  is  the  most 
convenient,  and  by  force  of  usage  might  perhaps  be  regarded  as 
tlie  most  regular  way  of  giving  notice,  and  establisliing  the  facts 
of  tlie  case  and  tlie  riglits  of  the  parties.  It  is  held,  however, 
in  some  of  our  States,  that  the  notarial  certificate  of  protest  and 
notice  of  promissory  notes  is  not  a  document  known  to  the 
law.(/i)  And  no  protest  will  authorize  any  one  to  pay  a  note 
"  for  the  honor  of  another."  That  is,  if  a  stranger  pays  a  note, 
he  will  acquire  no  rights  against  any  party,  unless  he  has  the 
note  transferred  to  him.(i) 

Noting  the  protest  means  simply  marking  (usually  and  prop- 
erly on  the  paper  itself)  the  fact  and  time  of  the  demand,  the 
charges  of  minuting,  and  sometimes  the  place  and  the  name  of 
the  parties  of  whom  the  demand  is  made,  and  it  is  signed  by 
the  initials  of  the  notary.  This  is  sometimes  said  to  be  not 
known  to  the  law.(y)  But  the  notary  fills  out  his  protest  after- 
wards (and  it  is  only  a  fuller  statement  of  all  these  facts),  or 
may  testify  in  court  as  to  the  facts,  by  using  the  noting  to  revive 
his  recollection. (A;)     The  notary,  by  usage,  makes  the  demand, 

the  indorsement  of  notes  and  the  drawing  and  indorsement  of  bills  of  exchange  is  so 
great,  that  there  can  be  no  sound  reason  given  for  establishing  or  preserving  a  distinc- 
tion between  thcni,  and  requiring  a  different  character  of  evidence  to  prove  the  same 
facts  with  regard  to  two  instruments,  which,  though  different  in  some  respects  as  to 
their  phraseology,  are  so  essentially  similar  in  their  nature  and  operation."  And  so  in 
Ticonic  Bank  v.  Stackpolc,  41  Maine,  302,  in  an  action  against  an  indorscr,  such  a  note 
was  treated  as  a  foreign  bill,  and  the  notarial  protest  was  held  legally  admissible  as 
evidence  by  the  common  law,  independently  of  any  statutory  regulation. 

(/()  Thus  in  New  York  it  is  held  that  a  promissory  note  payable  in  a  foreign  place 
cannot  be  regarded  as  a  bill  of  exchange  so  as  to  enable  a  protest  of  it  to  be  read  in 
evidence.  Kirtland  v.  Wanzer,  2  Duer,  278.  In  Indiana  such  a  protest  is  admitted 
under  the  statutes  of  that  State.  Shanklin  i;.  Cooper,  8  Blackf  41  ;  Turner  v.  Rogers, 
8  Ind.  139. 

(j)  Sec  supra,  ch.  9,  sect.  4.    See  also  Willis  v.  Hob.son,  37  Maine,  403,  sit/mi,  p.  257. 

ij)  As  by  Duller,  J.,  in  Leftley  v.  Mills,  4  T.  11.  170.  Thomson,  a  Scotdi  writer 
on  Bills,  p.  477,  says,  that  "  it  seems  to  be  now  held  in  Scotland  and  England,  that 
noting  is  a  kind  of  incipient  protest." 

(h)  It  is  said,  that  the  protest  may  be  formally  drawn  up  or  extended  at  any  time 
before  the  commencement  of  a  suit  upon  the  bill,  and  truly  antedated,  provided  it  was 
noted  in  due  time.  Chitty  on  Bills,  477  ;  Story  on  Bills,  ^  302  ;  per  Lord  Kenyan  and 
Lord  Ellenhorowjh,  in  Chaters  v.  Bell,  4  Esp.  48  ;  Orr  v.  Maginnis,  7  East,  359  ;  Rog- 
ers i;.  Stevens,  2  T.  R.  713  ;  Robins  v.  Gibson,  1  Maule  &  S.  288 ;  Goostrey  i'.  Mead, 
Buller,  N.  P.  271  ;  Cayuga  Co.  Bank  v.  Hunt,  2  Hill,  635  ;  Bailey  v.  Dozier,  6  How, 
23.  And  it  seems  that  the  protest  may  be  drawn  up  after  legal  proceedings  have  been 
instituted,  and  during  their  progress.  Brooke's  Notary,  97.  Such,  also,  is  the  law, 
even  in  the  ca.sc  of  payment  supra  j>rotest  for  the  honor  of  a  drawer  or  indorscr;  for. 


CH.  XIV.]  PROTEST.  645 

and  gives  notice  of  non-payment  to  all  prior  parties.  (Z)  And  hie 
notarial  certificate  should  contain  the  protest,  the  time,  manner, 
and  place  of  the  demand,  and  the  names  of  the  parties  of  whom 
the  demand  is  made,  of  those  at  whose  request  it  is  made,  and 
of  the  parties  notified. (w)     Nor  will  any  merelv  verbal  mistake 

although  to  make  a  party  to  a  foreign  bill  liable  in  such  case  to  a  person  who  takes  up 
such  bill  for  dishonor,  it  is  necessary  that  a  formal  declaration  of  protest  should,  pre- 
viously to  so  taking  up  the  bill,  have  been  made  before  a  notary,  tliat  the  ])aynient  was 
made  for  the  honor  of  such  party ;  yet  it  is  not  necessary  that  the  instrument  of  protest 
should  be  formally  drawn  up  at  the  time  of  sucli  payment,  but  may  be  drawn  up  at 
any  time  afterwards,  if  before  trial.  Geralopulo  v.  Weller,  10  C.  B.  690,  3  Eng.  L. 
feEq.  515. 

(/)  This  is  prescribed  by  statute  in  several  of  the  States.  Supra,  p.  635,  note  t. 
But  unless  required  by  some  State  law,  or  some  general  usage  equally  binding,  it  is  no 
part  of  the  official  duty  of  a  notary  by  the  law  merchant  to  give  notice  of  the  dishonor 
of  a  promissory  note.     Per  Story,  J.,  in  Burke  v.  McKay,  2  How.  66. 

[m)  Form  of  a  protest  for  non-payment  used  in  England,  as  given  in  Brooke's  No- 
tary, chap.  10  :  — 

On  the  day  of  ,  one  thousand  eight  hundred  and  , 

I,  R.  B.,  Notary  Public,  duly  admitted  and  sworn,  dwelling  in  L ,  in  the  county  of 

L ,  and  United  Kingdom  of  Great  Britain  and  Ireland,  at  the  request  of  C.  D.,  of 

L [or  of  "  the  holder  "  or  "  the  bearer,"  as  the  case  may  be),  did  exhibit  the  original 

bill  of  exchange,  whereof  a  true  copy  is  on  the  other  side  written,  unto  E.  F.  [or  as  the. 
case  may  be,  unto  a  clerk  in  the  counting-house  of  E.  F.),  the  person  upon  whom  the 
said  bill  is  drawn  (and  by  whom  the  same  is  accepted,  if  the  bill  have  been  accepted), 
and  demanded  payment  thereof  {or  payment  being  thereupon  demanded),  and  he 
answered  that  it  would  not  be  paid.  ( The  substance  of  any  other  answer  should  be  stated.) 
Wherefore,  I,  the  said  notary,  at  the  request  aforesaid,  have  protested,  and  by  these 
presents  do  protest,  against  the  drawer  of  the  said  bill,  and  all  other  persons  thereto, 
and  all  others  concerned,  for  all  exchange,  re-exchange,  and  all  costs,  damages,  and 
interest,  present  and  to  come,  for  want  of  payment  of  the  said  bill. 

Which  I  attest, 
(Seal.)  R.  B. 

Notary  Public,  L . 

In  a  case  where  it  appeared  from  the  protest  that  the  demand  was  made  of  the  clerk 
of  the  drawees  at  their  place  of  business,  but  it  was  not  stated  in  the  body  of  the  pro- 
test that  the  drawees  were  absent,  it  was  held  that  it  was  to  be  presumed  in  favor  of  the 
protest  that  the  drawees  were  absent.  Gardner  v  Bank  of  Tennessee,  1  Swan,  420. 
See  supra,  p.  639,  note  y.  So  it  will  be  presumed  in  favor  of  a  notary  who  certifies 
that  "  On,  &c.,  I  did  present  the  annexed  draft  of  A  on  B,  at  the  store  of  C,"  &c., 
that  he  presented  the  draft  to  the  drawee  in  person.  Sharpew.  Drew,  9  Ind.  281.  In 
the  protest  of  a  bill,  payable  at  a  bank,  and  of  which  the  bank  is  the  holder,  it  is  not 
necessary  to  give  the  name  of  the  person  or  officer  of  the  bank  to  whom  it  was  pre- 
sented,'or  by  whom  the  notary  was  answered  that  it  could  not  be  paid.  Hildeburn  v. 
Turner,  5  How.  69.  But  it  must  appear  from  the  certificate  that  the  presentment  was 
made  at  the  bank,  and  it  is  not  sufficient  to  say  merely  that  it  was  made  to  the  cashier 
of  the  bank.  Seneca  Co.  Bank  v.  Neass,  5  Denio,  329.  And  so  where  a  certificate  of 
a  noUry  stated  that  he  presented  the  bill  for  payment  to  "one  of  the  firm  of  W.  C.  & 
Co.,  the  acceptors,  and  demanded  payment,  which  was  refused,"  it  was  held  that  the 


G46  NOTES   AND   BILLS.  [CH.  XIV. 

or  eri'Oi'  in  the  notarial  certificate  vitiate  it,  if  the  protest  and 
noting  "were  properly  made,  and  the  notice  properly  given. (w) 

The  notarial  charges  are  a  legal  charge,  it  is  believed,  only 
where  the  protest  is  required  by  the  law  merchant.  But  it  is 
certainly  usual  to  pay  them  where  they  are  reasonable  and  made 
m  good  faith  and  in  conformity  with  usage. 

The  absence  of  protest  may,  in  general,  be  excused  on  the 
same  grounds  which  excuse  neglect  of  notice ;  and  these  ex- 
cuses have  been  fully  considered  in  a  previous  chapter,  (o)  Here 
it  may  be  said,  however,  that  protest  is  unnecessary  if  the 
drawer  has  neither  funds  in  the  hands  of  the  drawee,  nor  any 
arrangement  authorizing  him  to  draw.(/?)     So  it  is  if  the  drawer 

certificate  was  defective  in  not  stating  the  place  where  demand  was  made,  as  well  as 
in  not  stating  who  composed  the  firm,  or  the  name  of  the  person  of  whom  the  demand 
was  made.  Otsego  Co.  Bank  v.  Warren,  1 8  Barb.  290.  In  Elliott  v.  White,  6  Jones, 
N.  C.  98,  it  was  held  that  a  statement  in  the  protest  of  a  bill  purporting  to  be  drawn 
on  a  firm,  that  it  was  presented  to  A,  one  of  the  members  thereof,  was  evidence  of 
A's  membership  in  that  firm. 

{n)  Thus,  where  it  was  said  that  the  acceptance  was  made  by  "  Clias.  Byrne," 
instead  of  "  And.  E.  Byrne,"  as  it  was  in  the  original  bill,  this  error  was  not  permitted 
to  vitiate  the  protest.  And  the  court  said,  tliat  where  the  protest  was  duly  noted,  inas- 
much as  it  might  be  drawn  up  and  completed  at  any  time  before  ttic  commencement 
of  the  suit,  or  even  before  the  trial,  it  consequently  iniglit  be  amended  according  to  the 
truth,  if  any  mistake  had  been  made.  Dennistoun  r.  Stewart,  17  How.  606.  In  Bank 
at  Decatur  v.  Hodges,  9  Ala.  631,  a  mistake  iiad  been  made  in  the  certificate  in  de- 
scribing the  date  of  the  bill ;  and  the  court  said  that  a  mistake  made  in  extending  the 
notarial  act  may  be  corrected  at  any  time  afterwards.  "It  is  not  the  extension  of  the 
protest,  but  the  fact  that  it  is  so  protested,  which  is  the  essential  matter."  See  Johnson 
V.  Cocks,  7  Eng.  Ark.  672.  It  is  not  necessary  that  it  should  appear  in  the  protest 
iisdem  verbis  tiiat  the  notary  had  the  bill  with  liim  wlien  he  made  demand,  but  tho 
statement  in  the  protest  must  a:  vi  termini  import  this.  Bank  of  Vergennes  r.  Cam- 
eron, 7  Barb.  143  ;  Union  Bank  v.  Fowlkes,  2  Sneed,  555.  But  in  Musson  v.  Lake, 
4  How.  262,  it  was  held  that  a  protest  wliich  states  only  that  payment  was  demanded 
is  not  admissible  in  evidence  to  prove  presentment  of  the  bill.  Upon  identically  the 
same  question  the  contrary  opinion  was  held  in  Louisiana.  Nott  r.  Beard,  16  La.  308. 
And  it  may  be  remarked  that  in  Musson  v.  JjSikc,  ^fcLenn  and  Woodbury,  JJ.  dissented 
from  the  decision  of  the  court,  and  were  of  opinion  tliat  the  fair  inference  was  tliat  tho 
bill  was  presented  when  tho  demand  was  made.  It  will  be  pi-esumed  in  favor  of  the 
notary,  that  the  presentment  and  demand  were  made  at  a  proper  time  in  the  day 
Burbank  v.  Beach,  15  Barb.  326;  De  Wolf  ».  Murray,  2  Sandf.  166. 

(o)   Sec  supra,  chap.  13. 

(/))  The  want  of  a  protest,  like  the  want  of  notice  to  the  drawer,  will  not  ])r<judico 
the  holder  as  against  the  drawer,  wiiere  the  non-acceptance  or  nnn-i)a\nient  of  the  bill 
iS  caused  liy  the  fraudulent  act  of  the  drawer.  "  The  fact  of  drawing  without  finids,  in 
the  absence  of  other  proof  to  explain  it,  is  a  fr;ui(l  ;  for  \]\r  bill  !-;  negotiated  under  tiio 
faith  that  the,  drawer  has  or  will  place  eflfccts  in  llic  IkuhN  of  ilic  drawee  to  meet  tho 
bill  ;  and  if  li''  had  no  elTects  in  the  hands  of  the  drawt'c,  and  kiicN"  tlia',  none;  would  l-Q 


CH.  XIV.]  PROTEST.  647 

has  admitted  liis  liability,  and  promised  to  pay ;  (q)  or  has,  iu 
the  bill  itself,  directed  its  return  in  case  of  noii^)aymcnt,  with- 
out protest  or  further  charge. (r)  In  these  cases  it  may,  however, 
be  doubted  whether  the  protest  is  not  still  necessary  to  charge 
indorsers.(5)     At  all  events,  it  would  be  the  safest  way. 


placed  tliere,  and  that  tlic  drawee  would  not  meet  the  bill,  the  whole  transaction  is 
deemed  fraudulent  on  the  part  of  the  drawer.  Another,  but  subordinate  reason,  is 
given  for  this  cxce])lion,  that  tlie  drawer  cannot,  in  such  case,  be  in  any  way  injured 
for  want  of  notice  of  non-payment.  But  it  is  the  fraud  in  drawing  and  delivering 
such  a  bill  upon  which  the  excejition  substantially  rests  ;  for  bankruptcy  or  notorious 
insolvency  of  the  drawee,  or  proof  that  in  fact  no  injury  resulted  from  want  of  notice, 
will  not  excuse  the  holder  from  giving  the  drawer  notice  "  Per  Swan,  J.,  in  Miser  v. 
Trovinger,  7  Ohio  State,  281.  See  2  Smith's  Lead.  Cases,  pp.  22,  29;  Rogers  v  Ste- 
vens, 2  T.  R.  713;  Legge  v.  Thorpe,  12  East,  171,  2  Camp.  310;  Valk  v.  Sim- 
mons, 4  Mason,  113.  But  it  is  no  excuse  for  not  giving  notice  of  protest,  that  the 
drawer  had  no  eifects  in  the  drawee's  hands  at  the  time  when  the  bill  was  refused 
acceptance  or  afterwards,  if  he  had  some  effects  (to  whatever  amount)  in  the  drawee's 
hands  when  the  bill  was  drawn.  Orr  v.  Maginnis,  7  East,  359.  But  the  fact  that 
the  drawer  or  acceptor  of  a  bill  of  exchange  had  no  funds,  or  reasonable  expectatioa 
thereof,  at  the  place  of  payment,  is  no  excuse  for  want  of  notice  of  protest  for  non- 
payment ;  the  averment  and  proof  should  be,  that  the  parties  had  no  funds,  or  the 
reasonable  expectation  of  them,  in  the  hands  of  the  drawee  at  the  maturity  of  the  bill ; 
for  the  bill  may  have  been  drawn  for  the  accommodation  of  the  acceptor,  or  the  ac- 
ceptor may  have  had  funds  in  his  hands,  but  have  neglected  to  phice  them  in  proper 
time  at  the  place  of  payment.  Harwood  v.  Jarvis,  5  Sneed,  375.  Accoinmodation 
drawers,  who  unite  as  drawers  with  the  person  for  whose  accommodation  they  drew, 
are  entitled  to  notice  of  protest  if  they  had  reason  to  expect  their  principal  would  pro- 
vide funds  to  meet  the  bill.  Miser  w.  Trovinger,  7  Ohio  State,  281.  The  same  prin- 
ciple holds  with  accommodation  drawers  generally.  Id. ;  2  Smith's  Lead.  Cases,  22, 
29.  And  generally  it  is  the  settled  "rule  of  the  English  and  American  cases,  that, 
although  the  drawer  had  no  assets  in  the  hands  of  the  drawee,  want  of  protest  will  not 
be  excused  if  he  had  reasonable  grounds  to  expect  such  funds.     Id. 

(q)  Patterson  v.  Bccher,  6  J.  B.  Moore,  319  ;  Gibbon  v.  Coggon,  2  Camp.  188.  In  the 
latter  case  Lord  Ellenborough  said  :  "  By  the  drawer's  promise  to  pay,  he  admits  his 
liability ;  he  admits  the  existence  of  everything  which  is  necessary  to  render  liim 

liable I  must,  therefore,  presume  that  he  had  due  notice,  and  that  a  protest 

was  regularly  drawn  up  by  a  notary."  See  also  Lonsdale  v.  Brown,  4  Wash.  C.  C. 
86  ;  Coddington  v.  Davis,  1  Comst.  186  ;  Union  Bank  v.  Hyde,  6  Wheat.  572.  The 
last  two  cases  relate  to  waiver  of  protest  of  notes  by  express  undertaking  on  the  part 
of  indorsers.  See,  upon  the  same  point,  Sherer  v.  Easton  Bank,  33  Penn.  State,  134  ; 
Coddington  v.  Davis,  3  Denio,  16.  So  where  a  drawer  of  a  bill  informed  the  holder 
before  its  maturity,  that  it  would  not  be  paid  when  due,  this  was  a  waiver  of  protest 
and  notice.  Minturn  v.  Fisher,  7  Calif.  573.  And  so  the  existence  of  a  partnership 
between  the  drawer  and  acceptor,  it  seems,  would  excuse  the  want  of  protest  and  notice 
to  the  drawer.     Harwood  v.  Jarvis,  5  Sneed,  375. 

r)  Chitty  on  Bills,  456. 

(s)  In  Warder  v.  Tucker,  7  Mass.  449,  and  Taylor  v.  Bank  of  Illinois,  7  T.  B. 
Mon.  576,  where  the  drawer  had  no  effects  in  the  hands  of  the  drawee,  it  Wtts  held  that 


64?y  NOTES^  AND    BILLS.  [CH.  XIV 

A  promise  after  dishonor  to  pay  a  bill,  of  which  protest  and 
notice  are  necessary,  may  be  sufficient  prima  facie  evidence  that 
such  protest  and  notice  had  been  made.(^) 


SECTION    II. 

OF    RE-EXCHANGE    AND    OTHER    DAMAGES. 

He  who  draws  a  foreign  bill  of  exchange  makes  an  instru- 
ment which  is  intended  to  be  used  as  if  it  were  so  much  cash  on 
demand,  or  on  a  certain  day  after  sight  or  after  date,  at  the 
place  on  which  the  bill  is  drawn.  And  he  is  bound  to  the  re- 
mitter of  the  bill  to  make  it  this  at  its  maturity,  or  the  equiv- 
alent of  this.  This  obligation  gives  rise  (in  case  of  non-payment 
at  maturity)  to  what  is  called  a  right  of  re-exchange ;  which  is 
defined  to  be  the  expense  which  the  remitter  incurs  by  having  it 
dishonored  in  the  foreign  country  in  which  it  is  drawn,  duly 
presented,  and  returned  to  him,  and  taken  up  by  liim.(//)     The 


an  indorser  of  the  bill  was  entitled  to  notice  of  a  protest  for  non-acceptance,  although 
he  indorsed  only  for  the  accommodation  of  the  drawer.  But  this  would  be  otherwise 
if  the  indorser  knew  that  there  was  no  expectation  that  the  bill  would  be  accepted  or 
paid  Farmers'  Bank  v.  Vanmetcr,  4  Rand.  553 ;  2  Smith's  Lead.  Cases,  29.  See 
Hansbrough  v.  Gray,  3  Gratt  356. 

(0  Gibbon  v.  Coggon,  2  Camp.  188;  Levy  v.  Peters,  9  S.  &  K.  125;  Tratte  v. 
Hanly,  1  Misso.  35  ;  Mense  v.  Osbcrn,  5  id.  544. 

(u)  In  addition  to  our  own  explanation,  we  giv.e  the  clear  stuicmciit  of  tlie  nature  of 
the  transaction,  and  the  relations  which  give  rise  to  the  question  of  exchange  and  re- 
exchange,  as  made  by  the  counsel  for  the  plaintiff  in  ])e  Tastct  v.  Baring,  1 1  East, 
265,  2  Camp.  65  :  "  A  merchant  in  London  draws  on  his  debtor  in  Lisbon  a  bill  in 
favor  of  another  for  so  much  in  the  currency  of  Portugal,  for  which  he  receives  its  cor- 
responding value  at  the  time  in  English  currency  ;  and  that  corresponding  value  fluc- 
tuates from  time  to  time,  according  to  the  greater  or  lesser  demand  there  may  be  in  the 
London  market  for  bills  on  Lisbon,  and  the  facility  of  obtaining  thcin  ;  the  dilFcrenco 
of  that  value  constitutes  the  rate  of  exchange  cm  Lisl)on.  The  like  circumstances  and 
considerations  take  place  at  Lisbon,  and  constitute  in  like  maimer  the  rate  of  exchange 
on  London.  When  the  holder,  therefore,  of  a  London  bill,  drawn  on  lasbon,  is  refused 
[)ayment  of  it  in  Lisbon,  the  actual  loss  which  he  sustains  is  not  the  identical  sum 
which  he  gave  for  the  bill  in  London,  but  the  amount  of  its  contents  if  paid  at  Lisi)on, 
where  it  was  due,  and  the  sum  which  it  will  cost  him  to  replace  that  amount  upon  the 
spot  by  a  bill  upon  Lonilon,  which  he  is  entitled  to  draw  upon  the  persons  there  who  are 
liable  to  him  u[)on  the  former  bill.  That  cost,  whatever  it  may  be,  constitutes  his  actaal 
loss,  and  the  charge  for  rc-exchange.  And  it  is  quite  immaterial  whether  or  not  ho  in 
fact  rc-(lraw3  such  a  bill  on  London,  and  raises  the  money  upon  it  in  the  T-isloa  rial- 


CH.  XIV.]  RE-EXCHAXGE    AXD    OTHER   DAMAGES.  649 

meaning  and  operation  of  tliis  may  ])c  thus  illustrateil.  The 
di'awcr,  having  ten  thousand  dollars  due  to  him  in  London, 
draws  his  bill  on  his  debtor,  and  sells  it  to  a  party  who  owes, 
or  is  to  owe,  that  sum  at  that  place.  The  bill  is  remitted  by 
the  purchaser  to  his  creditor  or  to  his  agent,  as  funds  to  pay 
his  creditor,  and  it  is  dishonored.  The  remitter  must  now  be 
indemnified.  And  this  may  happen  in  cither  of  two  ways.  The 
remitter  may  draw  a  new  bill,  for  such  sum  as  will  put  his  cred- 
itor in  possession  of  the  sum  due,  with  legal  interest  and  ex- 
penses of  protest,  etc.,  and  as  he  must  pay  for  this  new  bill 
whatever  rate  of  excliange  it  is  worth,  and  may  claim  of  the 
drawer  whatever  it  costs  him,  in  this  way  the  drawer  pays  to 
him  the  re-exchange ;  or  the  receiver  of  the  bill  in  London  may, 
on  its  dishonor  there,  draw  a  bill  on  the  remitter  for  such  sum 
as  will  enable  him  to  sell  the  bill  there  for  the  amount  which  he 
ought  to  have  received  on  the  first  bill,  clear  of  all  cost.  Of 
course  he  must  include  in  the  bill  the  rate  of  exchange  which 
will  bring  the  market  value  of  the  bill  in  London  up  to  this 
point.     The  remitter  must  pay  this  bill  (including   as   it    does 


ket ;  his  loss  by  the  dishonor  of  the  London  bill  is  exactly  the  same,  and  cannot  depend 
on  the  c'ircnmstcince  whether  he  repay  himself  immediately  by  re-drawin<r  for  the 
amount  of  the  former  bill,  with  the  addition  of  the  charges  upon  it,  including  the 
amount  of  the  re-exchange,  if  unfavorable  to  this  country  at  the  time,  or  whether  he  wait 
till  a  future  settlement  of  accounts  with  the  party  who  is  liable  to  him  on  the  first  bill 
here  ;  but  that  party  is  at  all  events  liable  to  him  for  the  difference,  for  as  soon  as  the 
bill  was  dishonored,  the  holder  was  entitled  to  re-draw.  That  therefore  is  the  period 
to  look  to.  It  ought  not  to  depend  on  the  rise  or  fall  of  the  bill  market,  or  exchange 
afterwards ;  for  as  he  could  not  charge  the  increased  difference  by  his  own  delay  in 
waiting  till  the  exchange  grew  more  unfavorable  to  England  before  he  redrew,  so  neither 
could  the  party  here  fairly  insist  on  having  tlic  advantage,  if  tiie  exchange  happened 
to  be  more  favorable  wlicn  the  bill  was  actually  drawn.  Where  re-cxcliange  has  been 
recovered  on  the  dishonor  of  a  foreign  hill,  it  has  not  been  usual  to  prove  that  in  fjvct 
another  bill  was  re-drawn.  If  the  quantum  of  damage  is  not  to  be  ascertained  by  the 
existing  rate  of  exchange  at  the  time  of  the  dishonor,  the  rule  will  become  extremely 
complex  for  settling  what  is  to  be  paid  on  the  bill  between  different  indorsees,  each  of 
whom  takes  it  at  the  value  of  the  exchange  when  he  purchased  it.  If,  then,  the  amount 
of  the  re-exchange  between  the  two  countries  at  the  time  of  the  dishonor  be  the  true 
measure  of  damage  which  the  holder  at  Lisbon  was  entitled  to  receive  from  his  indorsee 
in  England,  and  that  re-exchange  consists  of  the  amount  of  a  bill  on  London,  which 
would  put  the  holder  of  the  dishonored  bill  in  the  same  situation  as  if  he  had  received 
the  contents  of  it  when  due  in  Lisbon,  it  cannot  make  any  difference  whether  the  ex- 
change between  Lisbon  and  London  at  the  time  were  carried  on  directly,  or  through 
c^e  medium  of  other  places.  The  more  circuitous  and  difficult  it  was,  the  greater  would 
*e  the  loss  of  the  holder  by  the  dishonor." 
VOL.   I.  55 


650  NOTES   AXD   BILLS.  f  CH.  XIV. 

this  re-exchange)  5  and  then  he  has  his  claim  against  the  drawer 
for  all  that  it  costs  him.  The  acceptor,  it  is  said,  is  not  liable 
for  re-exchange,  as  he  is  bound  only  for  the  sum  he  promises  to 
pay,  with  legal  interest,  (v)  But  for  this  he  is  bound  to  the 
holder  ;  and  also  to  the  drawer,  if  he  pays  the  bill.  And  if  the 
default  of  the  acceptor  compels  the  drawer  to  pay  this  bill,  and 
these  damages  with  it,  it  would  seem,  on  general  principles,  that 
the  drawer's  claim  on  the  acceptor  should  cover  the  whole 
amount.  (?/;) 

(v)  Napier  v.  Shneider,  12  East,  420  (May  30th,  1810)  ;  Woolsey  v.  Crawford,  2 
Camp.  445  (May  28th,  1810).  In  the  latter  case,  which  was  an  action  by  the  payee  of 
a  bill  against  the  acceptor.  Park,  counsel  for  the  plaintiff,  contended  that  tlie  defendant 
was  answerable  for  all  the  damage  that  had  been  suffered  by  the  plaintiff  from  the  bill 
being  dishonored.  Lord  Ellenborough  :  "  You  may  as  well  state  that,  by  reason  of  tho 
bill  not  being  paid,  the  plaintiff  was  obliged  to  raise  money  by  mortgage.  You  must 
proceed  for  re-exchange  against  the  drawer.  He  undertakes  that  the  bill  shall  be  paid, 
or  that  he  will  indemnify  the  holder  against  the  consequences.  The  acceptor's  contract 
cannot  be  carried  farther  than  to  pay  the  sum  specified  in  the  bill,  and  interest  accord- 
ing to  the  legal  rate  of  interest  where  it  is  due."  In  Watt  v  Riddle,  8  Watts,  545, 
Gibson,  C.  J.  said :  "  It  was  not  a  little  remarkable  that  in  so  commercial  a  country  as 
America  the  point  submitted  has  not  been  raised  before ;  nor  is  it  less  so,  that  it  was  first 
decided  in  England  so  late  as  1810,  and  with  so  little  remark  as  to  the  principle  of  the 
decision,  though  a  novel  and  an  important  one.  It  came  up  in  Napier  r.  Shneider,  12 
East,  420,  on  a  motion  to  direct  that  the  master  allow  the  expense  of  re-exchange  on  a 
judgment  against  the  defendant  as  an  acceptor ;  to  which  tlie  court  barely  answered  that 
it  could  not  be  done  against  one  who  liad  charged  himself  by  his  acceptance  with  no 
more  than  liability  to  pay  according  to  the  law  of  his  country  ;  and  that  if  he  do  not,  tho 
holder  has  his  remedy  against  the  drawer."  It  was  decided  in  this  case  that  tlie  statute 
of  Pennsylvania,  which  gives  liquidated  damages  as  a  substitute  for  re-exchange,  ha.s 
regard  only  to  drawers  and  indorsers.  By  the  Continental  law  the  acceptor  is  liable  for 
re-exchange.  Pothier  says  that  the  acceptor  is  liable  to  pay  re-exchange  as  the  drawer 
is  liable  to  pay  it,  to  whose  obligation  the  acceptor  is  taken  to  have  become  a  party 
(avoir  accede)  by  his  aeeeptance.  Pothier  de  Cliangc,  n.  115-117,  eh.  6,  art.  4,  §  1 .  The 
principle  of  accession,  in  the  civil  law,  produces  a  unity  of  interest  and  obligation 
between  parties  that  would  otherwise  be  severally  bound,  and  it  seems  to  be  the  want 
of  this  principle  which  gave  a  different  rule  to  the  English  law.  That  tlie  acceptor 
is  not  liable  for  damages,  sec  further,  Bowcn  i\  Stoddard,  10  Met.  .')75 ;  Newman  v. 
Goza,  2  La.  Ann.  642;  Hanrick  v.  Farmers'  Bank,  8  Port.  Ala.  S.'jg.  He  is  made 
liable  by  statute  in  Missouri. 

(w)  Baylcy  on  Bills,  ch.  9,  p.  353  ;  Riggs  v.  Lindsay,  7  Crunch,  500.  In  this  case  the 
acceptors  had  expressly  authorized  and  requested  the  drawer  to  draw  upon  them. 
And  so  in  Francis  v.  Ilueker,  Ambler,  672,  the  bill  having  been  drawn  in  pursuance 
of  orders  of  the  acceptors,  the  drawer  was  allowed  by  Lord  Camden  to  prove  his  debt, 
including  rc-cxcliange  against  the  acceptors,  who  had  become  bankrupt.  See  Grim- 
shaw  V.  Bender,  6  Mass.  157,  161,  for  diiinni  of  Parsons,  C.  J.,  and  also  a  dictum  in 
Bowcn  i^.  Stoddard,  10  Met.  375.  Mr.  Bay  ley  says  that  "it  seems  rca.sonablc  that  tho 
acceptor  should  be  liable  to  all  parties  where  he  has  effects,  and  to  all  excepting  tho 
drawer  where  he  has  not."     Bills,  ch.  10,  p.  456,  note.     But  the  authorities  onlv  go 


CH.  XIV.]  RE-EXCHANGE   AND    OTHER   DAMAGES.  651 

The  drawer  is  liable  for  re-exchange  as  soon  as  the  bill  is  dis- 
honored and  protested,  whether  for  non-acceptance  or  for  non 
payment, (.r)  and  his  liability  is  fixed  in  accordance  with  the 
laws  of  the  conntry  where  the  bill  is  drawn. (v/)  Nor  is  it  a 
defence,  that  the  payment  of  the  bill  was  prevented  by  the  gov- 
ernment of  the  country  in  which  it  was  drawn. (2^)     And  in  this 

to  the  extent,  that  if  he  has  expressly  or  impliedly  agreed  with  the  drawer  or  indorser, 
for  a  valuable  consideration,  to  pay  the  bill  at  its  maturity,  he  is  liable  for  a  breach  of 
his  contract;  and  if  he  has  funds  of  the  drawer  in  his  hands,  he  would  [)crhaps  be 
bound  to  accept.     See  City  Bank  of  New  Orleans  v.  Girard  Bank,  10  La.  562. 

{x)  But  the  drawer  is  not  liable  to  the  indorser  of  a  bill  for  damages  incurred  by  the 
non-acceptance  of  the  bill,  unless  the  indorser  has  been  obliged  to  pay  them,  or  is  liable 
for  them.  Kingston  v.  Wilson,  4  Wash.  C.  C.  310;  Bank  of  U.  S.  v.  U.  S.,  2  How. 
711,  764,  767. 

(y)  Price  v.  Page,  24  Misso.  65 ;  Story's  Conf.  of  Laws,  §  307.  In  Allen  v.  Kemble, 
6  Moore,  P.  C.  314,  the  court  says  :  "  The  drawer  by  his  contract  undertakes  that  the 
drawee  shall  accept,  and  shall  afterwards  pay  the  bill,  according  to  its  tenor,  at  the 
place  and  domicil  of  the  drawee,  if  it  be  drawn  and  accepted  generally ;  at  the  place 
appointed  for  payment,  if  it  be  drawn  and  accepted  payable  at  a  different  place  from 
the  place  of  domicile  of  the  drawee.  If  this  contract  of  the  drawer  be  broken  by  the 
drawee,  either  by  non-acceptance  or  non-payment,  the  drawer  is  liable  for  payment 
of  the  bill,  not  where  the  bill  was  to  be  paid  by  the  drawee,  but  where  he,  the  drawer, 
made  his  contract,  with  his  interest,  damages,  and  costs,  as  the  law  of  the  country  where 
he  contracted  may  allow."  See  Gibbs  v.  Fremont,  9  Exch.  25,  20  Eng.  L.  &  Eq.  555. 
And  so  in  an  action  against  an  indorser  of  a  bill  of  exchange,  the  law  of  the  State 
where  the  indorsement  was  made  must  govern  as  to  the  rate  of  damages.  Cullum  v. 
Casey,  9  Port.  Ala.  131.  Such  statutes  have  force  only  within  the  State  enacting 
them.  Fiske  v.  Foster,  10  Met.  597.  Each  successive  party  to  a  bill  is  liable  for  dam- 
ages on  its  dishonor,  according  to  the  law  of  the  place  where  the  contract  was  made; 
and  each  indorsement  is  a  new  contract.     Story  on  Bills,  153. 

(z)  Mcllish  V.  Simeon,  2  H.  Bl.  378.  The  facts  of  this  interesting  case  were  these: 
"On  the  9th  of  July,  1793,  two  bills  of  exchange  were  drawn  by  Simeon  in  London  on 
Boyd  &  Co.  in  Paris,  one  for  35,000,  the  other  for  36,000  livrcs  tournois,  amounting 
together  to  £  603  19s.  lOd.  sterling,  according  to  the  rate  of  exchange  between  Lon- 
don and  Paris  of  6Jo?.  for  the  French  crown  of  three  livres,  and  payable  to  the  order 
of  Mcllish  &  Co.,  who  indorsed  them  in  London  to  Jeysset  &  Co.  at  Amsterdam. 
Jeysset  &  Co.  indorsed  them  to  Meryolet  at  Amsterdam,  and  Meryolet  to  An- 
droine  at  Paris.  When  they  were  presented  for  acceptance,  Boyd  &  Co.  refused  to 
accept  them,  but  promised  that  they  should  be  paid  when  they  became  due.  In  the 
mean  time,  the  French  Convention  passed  a  decree  prohibiting  the  payment  of  any  bills 
drawn  in  any  of  the  countries  at  war  with  France,  and  of  course  the  bills  in  question 
were  not  paid.  In  consequence  of  this,  they  were  sent  back  by  Androine  to  Meryolet 
At  Amsterdam,  protested  for  non-acceptance  and  non-payment,  and  at  the  same  time 
Androine  drew  another  bill  on  Meryolet  for  the  amount  of  them,  at  the  rate  of  18^ 
groots  for  the  French  crown  of  three  livres,  for  the  re-exchange  between  Paris  and 
Amsterdam,  together  with  the  ordinary  charges,  which  bill  Meryolet  paid,  and  was 
reimbursed  by  Jeysset  &  Co.,  by  compromise  between  them,  at  the  rate  of  18  groots  for 
the  French  crown,  amounting  to  £905  13s.  9d.  sterling,  for  which  sum,  together  with 
cnarges  at  Amsterdam,  and  the  re-exchange  between  that  place  and  London,  making 


652  NOTES   AXD   BILLS.  [CH.  XIV 

case,  as  well  as  in  all  others,  if  the  bill  is  returned  to  him  cir- 
cuitously,  through  other  countries,  so  that  more  than  one  re- 
exchange  is  added  to  it,  he  is  liable  for  the  whole,  provided  this 
circuitous  return  was  in  good  faith  and  justified  by  circum- 
stances, and  was  not  unnecessary  or  wanton. (a)  And  although 
the  whole  doctrine  and  practice  of  re-exchange  seems  to  belong 
exclusively  to  foreign  bills  of  exchange,  promissory  notes  may 
be  so  drawn  as  to  bring  them  substantially  under  a  similar 
rule.  (6) 

As  the  amount  of  re-exchange  depends  necessarily  upon  the 
course  of  business  and  the  rate  of  exchange  of  the  countries,  it 
is  legal  and  not  unfrequent  to  determine  the  amount  by  antici- 
pation. Thus,  where  the  bill  says,  "  In  case  of  dishonor,  re- 
exchange  and  expenses  not  to  exceed  $  — ,  so  much  either  per 


in  the  whole  £913  4s.  3d.  sterling,  Jeysset  &  Co.  drew  a  bill  on  Mellish  &  Co.,  which 
they  paid,  and  took  back  the  former  bills,  on  which  they  brought  the  present  action 
against  Simeon,  the  drawer,  and  recovered  a  verdict  for  the  whole  sum  of  £913  4s.  3d. 
And  now  Le  Blanc,  Sergeant,  moved  for  a  new  trial,  on  the  ground,  that  the  defendant 
was  not  liable  for  the  loss  on  the  re-exchange.  It  is  true,  he  said,  that  the  drawer  of  a 
bill  of  exchange  undertakes,  by  the  act  of  drawing  it,  that  the  drawee  shall  be  found  in 
the  place  where  he  is  described  to  be,  and  shall  have  effects  in  his  hands  ;  but  the  un- 
dertaking does  not  extend  to  the  case  of  a  proiiibition  to  accept  or  pay  the  bill  imposed 
by  the  law  of  a  foreign  country  in  which  the  drawee  resides.  When  a  person  takes  a 
bill  circumstanced  as  this  was,  he  must  submit  to  the  laws  of  that  country.  There 
was  no  default  in  the  drawer ;  he  therefore  cannot  in  justice  be  lialde  for  more  than 
the  sum  he  originally  received  for  the  bills,  with  interest  and  the  expenses  of  protesting 
them."  Lord  Chief  Justice  Ei/j-e  :  "  I  see  no  distinction  between  this  case  and  the  com- 
mon one  of  a  bill  being  refused  payment.  Tlie  drawer  must  pay  for  all  the  conse- 
quences of  the  non-payment,  and  the  loss  on  the  re^exchange  seems  to  me  to  be  part  of 
the  damages  arising  from  the  contract  not  being  performed.  I  thought,  indeed,  at  the 
trial,  that  it  might  be  a  question  whether  the  drawer  were  liable  for  tlie  re-exdiange 
occasioned  by  the  circuitous  mode  of  returning  the  bills  tlirough  Amsterdam,  but  the 
jury  decided  it."  Buller,  J. :  "  What  is  the  engagement  of  the  drawer  of  a  bill  of  ex- 
change ?  He  undertakes  tliat  the  bill  shall  be  i)aid  when  due.  If  it  be  not  ])aid,  it  is 
not  necessary  for  tlie  holder  to  inquire  for  what  reason  it  is  not  paid,  and  if  the  liolder 
has  been  guilty  of  no  default,  the  drawer  is  answerable  for  tlie  amount  of  the  bill ;  and 
if  he  is  liable  for  tlie  bill,  he  must  also  l)e  liable  for  the  re-exchange,  which  is  a  conse- 
quence of  the  bill  not  being  paid."  llenth,  J.  was  of  the  same  opinion.  He  who  un- 
dertakes for  the  act  of  another,  undertakes  tiiat  it  shall  be  done  at  all  events. 

(a)  Mellish  v.  Simeon,  2  H.  lii.  378;   De  Tastet  v.  Baring,  11  East,  26.'). 

(b)  As  where  a  note  was  made  "j)ayal)le  in  Paris,  or,  at  the  choice  of  the  bearer,  in 
Dover  or  London,  according  to  the  course  of  ex<'hnngo  upon  Paris,"  and  shoitly  afier 
all  direct  exchange  ceased  between  London  and  Paris,  though  a  circuitous  course  of 
exchange  wjus  maintained  through  Hamburg,  it  was  held  that  the  plaintiO'  was  entitled 
to  recover  npon  the  note  ;  according  to  the  system  of  circuitous  exchange  existinp  »t 
the  time  the  note  was  presented  for  payment.     Pollard  i;.  Herries,  3  Bos.  &  P.  335 


CH.  XIV.]  KE-EXCHANGE   AND   OTHER   DAMAGES.  653 

cent  or  in  a  gross  sum,"  no  holder  of  such  a  l)ill  can  go 
beyond  this  limit. (c)  Nor  could  he  claim  so  much  under  tliis 
phraseology,  unless  the  rc-exchange  comes  up  to  this.  To  avoid 
question  and  litigation,  it  is  therefore  better  to  say,  "  shall  be  so 
mucli,"  instead  of  "  not  to  exceed." 

This  is  precisely  what  the  mercantile  usages  of  this  country, 
in  the  first  place,  and  afterwards  the  State  statutes,  have  done. 
It  was  first  asserted  as  established  mercantile  usage  in  Massachu- 
setts, and  therefore  as  law,  that  ten  per  cent  was  payable  as,  or 
instead  of,  re-exchange  in  all  cases  of  dishonor  of  a  bill  drawn  in 
London. (f/)     Afterwards,   this   and   sundry   other   rates   of   ex- 


(c)  Chitty  on  Bills,  165. 

(rf)  Grimshaw  v.  Bender,  6  Mass.  157,  161.  Mr.  Chief  Justice  Parsons,  in  deliver- 
ing the  opinion  of  the  court  in  this  case,  said :  "  According  to  the  law  merchant,  ua- 
controlled  by  any  local  usage,  the  holder  is  entitled  to  recover  the  face  of  the  bill,  and 
the  charges  of  the  protest,  with  interest  from  the  time  when  the  bill  ought  to  have  been 
paid,  and  also  the  price  of  re-exchange,  so  that  he  may  purchase  another  good  bill  for 
the  remittance  of  the  money,  and  be  indemnified  for  the  damage  arising  from  the  delay 
of  payment.  But  he  cannot  claim  the  ten  per  cent  of  the  bill,  which  it  is  here  the  usage 
to  pay.  But  the  mle  of  damages  established  by  the  law  merchant  is,  in  our  opinion, 
absolutely  controlled  by  the  immemorial  usage  in  this  State.  Here  the  usage  is,  to 
allow  the  holder  of  the  bill  the  money  for  which  it  was  drawn,  reduced  to  our  currency 
at  par,  and  also  the  charges  of  protest,  with  American  interest  on  those  sums  from  the 
time  when  the  bill  should  have  been  paid  ;  and  the  further  sum  of  one  tenth  of  the 
money  for  which  the  bill  was  drawn,  with  interest  upon  it  from  the  time  payment  of 
the  dishonored  bill  was  demanded  of  the  drawer.  But  nothing  has  been  allowed  for 
re-exchange,  whether  it  is  below  or  at  par.  This  us.ige  is  so  ancient,  that  we  cannot 
trace  its  origin  ;  and  it  forms  a  part  of  the  law  merchant  of  the  Commonwealth.  Courts 
of  law  have  always  recognized  it,  and  juries  have  been  instructed  to  govern  themselves 

by  it  in  finding  their  verdicts The  origin  of  this  usage  was  probably  founded  in 

the  convenience  of  avoiding  all  disputes  about  the  price  of  re-exchange,  and  to  induce 
purchasers  to  take  their  bills,  by  a  liberal  substitution  often  per  cent  instead  of  a  claim 
for  re-exchange.  And  such  is  the  course  of  excliaiige  between  this  State  and  England, 
that  the  usage  is  generally  favorable  to  the  holders  of  dishonored  bills,  and  tends  to 
discourage  the  drawing  of  bills  by  persons  who  have  no  funds  to  meet  them."  See 
Mass.  Stat.  1819,  c.  41,  and  1825,  c.  177  ;  R.  S.  1836,  c.  33;  Gen.  Stats.  18G0,  c.  53. 
Mr.  Chitty  suggests  the  expediency  of  a  fixed  rule  of  damages  instead  of  re-exchange. 
Bills,  188,  667,  668.  The  policy  of  establishing  statutory  damages  in  place  of  re- 
exchange  is  touched  upon  in  Lennig  v.  Ralston,  23  Penn.  State,  137,  and  it  is  declared 
that  courts  should  give  such  statutes  a  liberal  interpretation.  "  The  dishonor  of 
foreign  bills,"  it  is  said,  "  may  occur,  and  usually  does  occur,  at  points  where  the 
holders  cannot  supervise  the  result,  and  where  they  have  neither  means  nor  credit  to 
provide  against  the  injury.  These  instruments  are  generally  procured  at  a  pre- 
mium by  the  holders,  for  the  purpose  of  making  their  purchases  in  the  country 
where  the  bills  are  payable,  or  as  the  means  of  pursuing  their  travels  or  main- 
taining their  credit  abroad.  The  great  distance  between  the  residence  of  the  drawers 
and  that  of  the  acceptors  must  necessarily  cause  great  delay  in  procuring  indomnitv 
55* 


65'A  NOTES   AND   BILLS.  [CH.  XIV. 

change,  or  of  damages  instead  of  them,  between  this  State  and 
various  foreign  countries,  and  between  this  State  and  other 
States,  were  established  by  law.  Similar  statutes  exist  now  in 
otlier  States. 

These  statutes,  in  the  different  States,  are  far  from  uniform. 
The  inconvenience  and  frequent  mischief  arising  from  the  diver- 
sity of  the  legal  provisions  on  this  subject  have  been  strongly 
urged  upon  the  attention  of  Congress,  wliich,  it  is  believed,  has 
the  jjower  to  regulate  these  damages  by  some  uniform  rule.(e) 
But  the  national  legislature  has  as  yet  taken  little  or  no  ac- 
tion on  the  subject ;  and  there  seems  to  be  but  little  hope  of  any 
establishment  of  a  national  and  uniform  rule.     We  give  in  our 

from  the  former.  In  the  mean  time,  the  loss  to  the  holders,  if  they  rely  exclusively 
upon  the  bills  to  maintain  their  credit,  and  carry  on  their  business,  might  be  irrep- 
arable. Under  such  circumstances  the  recovery  of  the  face  of  the  bill  only,  with 
the  usual  interest,  re-exchange,  and  costs,  would  be  but  a  cold  and  inadequate 
remedy  for  so  great  an  injury.  The  Act  of  1821  was  deemed  necessary  in  order 
to  do  justice  in  such  cases,  and  for  the  purpose  of  maintaining  our  commercial 
credit  in  other  countries.  It  should  receive  such  a  construction  as  will  best  promote 
the  intentions  of  the  legislature  in  these  respects."  As  flir  back  as  the  year  1700,  the 
legislature  of  Pennsylvania  allowed  twenty  per  cent  damages,  in  lieu  of  re-cxchange, 
on  all  bills  drawn  on  England,  or  any  part  of  Europe.  Francis  v.  Kucker,  Ambl. 
672;  Hendricks  v.  Franklin,  4  Johns.  119.  In  Rhode  Island,  as  early  as  1743,  an 
act  of  similar  purport  was  passed,  fixing  the  damages  at  ten  per  cent.  Brown  v.  Van 
Braum,  3  Dallas,  344.  In  Hendricks  v.  Franklin,  4  Johns.  119,  which  was  an  action 
on  a  bill  drawn  in  New  York  on  Liverpool,  the  plaintiff'  claimed  twenty  per  cent 
damages  and  interest,  together  with  two  per  cent  for  the  difference  of  exchange,  it 
being  two  per  cent  above  par  when  the  defendant  was  notified  of  the  non-payment 
of  the  bill,  in  accordance  with  the  usage  of  the  Chamber  of  Commerce  to  allow  for 
this  difference.  Spencer,  J.  said :  "  The  right  to  recover  twenty  per  cent  damages 
on  the  protest  of  a  foreign  bill  of  exchange  rests  with  us  on  immemorial  commer- 
cial  usage,  sanctioned   by  a  long   course  of  judicial   decision It   is   presumed 

that  our  rule  to  allow  twenty  per  cent  on  the  protest  of  a  foreign  bill  was  oiiginally 
coextensive  witli  the  rule  established  in  Pennsylvania,  and  tiiat  the  same  reasons  in- 
duced botli  rules.  The  twenty  per  cent  was  in  lieu  of  damages  in  case  of  re-excluingc, 
and  because  there  was  no  course  of  exchange  from  London  to  New  York,  and  to  avoid 

the  constant  fluctuation  and  uncertainty  of  exchange I  understand  that  merchants 

regulate  themselves  by  tlie  rules  of  the  Cliamber  of  Commerce.  Tiiis,  iiowever,  can- 
not make  the  law ;  the  usage  is  too  recent,  and  too  unsupported  by  judicial  counte- 
nance, to  produce  the  conse([uences  contended  for In  my  opinion,  tiie  twenty  per 

cent  is  in  lieu  of  all  claim  for  damages  in  such  cases;  and  the  claim  for  liie  difference 
in  the  price  of  the  bills  cannot  be  supported,  and  therefore  it  must  be  deducted  in  this 
case."  In  a  subscciuent  case,  Irowever,  in  the  Court  of  Errors,  tliis  rule  was  altered, 
and  the  holder  allowed  to  recover  at  the  rate  of  exchange  at  the  time  of  tlie  return  of 
the  bill.     Graves  v.  Dash,  12  Johns.  17. 

(e)  iSee  2  Am.  Jurist,  p.  79  ;  Mr.  Verplanck's  Report  to  the  House  cf  Representa- 
tives, March  22d,  1826. 


CH.  XIV.]  RE-EXCHANGE   AND    OTHER   DAMAGES.  655 

notes   a   synopsis   of  the   laws    of  tlie  various    States    on    this 
subject.  (/) 

(/)  Alabama.  The  damages  on  inland  bills  of  exchange,  protested  for  non-pay- 
ment, are  ten  per  cent,  and  on  foreign  bills  of  exchange,  protested  for  non-payment, 
fifteen  per  cent,  on  the  sum  drawn  for.  Such  damages  are  in  the  place  of  all  charges, 
except  costs  of  protest,  incurred  previous  to  and  at  the  time  of  giving  notice  of  non- 
payment ;  but  the  holder  may  recover  legal  interest  upon  the  aggregate  amount  of  the 
principal  sum  specified  in  the  bill,  and  of  the  damages  thereon,  from  the  time  at  which 
payment  of  the  principal  sum  has  been  demanded,  and  costs  of  protest.  When  the 
amount  in  such  bill  is  expressed  in  money  of  the  United  States,  the  damages  allowed  by 
the  statute  cover  the  rate  of  exchange  ;  but  bills  payable  in  ibreign  currency  have  the 
rate  of  exchange  added.  The  same  damages  are  allowed  on  the  dishonor  of  bills  by 
non-acceptance,  with  interest  on  the  principal  sum  from  the  time  when  the  same  would 
have  become  payable  if  accepted,  and  interest  on  the  damages  from  the  demand  of 
acceptance.  Code,  1852,  ^4  1537-1541.  Inland  bills  arc  defined  to  be  such  as  are 
drawn  and  i)ayablo  within  the  State ;  and  those  drawn  in  this  State  and  payable  else- 
where arc  foreign.     Id.,  §  1549. 

Arkansas.  On  every  bill  of  exchange,  expressed  to  be  for  value  received,  drawn  or 
negotiated  within  the  State,  payable  after  date  to  order  or  bearer,  and  protested  for 
non-acceptance  or  non-payment,  the  damages  are  as  follows.  For  a  bill  drawn  on 
any  person,  at  any  place  within  this  State,  at  the  rate  of  two  per  cent  on  the  principal 
sum  ;  for  a  bill  payable  in  Alabama,  Louisiana,  Mississippi,  Tennessee,  Kentucky, 
Ohio,  Indiana,  Illinois,  or  Missouri,  or  any  point  on  the  Ohio  River,  at  the  rate  of  four 
percent;  for  a  bill  payable  elsewhere  in  the  United  States,  five  per  cent;  for  a  bill  pay- 
able beyond  the  limits  of  the  United  States,  ten  per  cent.  The  acceptor  of  bills  drawn 
on  persons  within  the  State  is  required  to  pay  damages  on  bills  protested  for  non-pay- 
ment, as  follows  :  if  the  bill  is  drawn  by  any  person  at  any  place  within  this  State,  at 
the  rate  of  two  per  cent  on  the  principal  sum  ;  if  drawn  at  any  place  without  this 
State,  but  within  the  limits  of  the  United  States,  at  six  per  cent;  if  drawn  at  any 
place  without  the  limits  of  the  United  States,  at  ten  per  cent.  Dig.  of  Stats.  1858, 
p.  209. 

California.  The  damages  on  protested  bills  of  exchange,  drawn  or  negotiated  within 
this  State,  are  as  follows.  If  drawn  upon  any  person  in  any  of  the  United  States,  cast 
of  the  Rocky  Mountains,  fifteen  per  cent ;  if  drawn  upon  any  person  in  Europe,  or  in 
any  foreign  country,  twenty  per  cent.  Such  damages  are  in  lieu  of  interest  and  all 
charges  previous  to  the  giving  notice  of  dishonor.  If  the  contents  of  such  bill  be  ex- 
pressed in  the  money  or  currency  of  any  foreign  country,  then  the  amount  due,  exclu- 
sive of  the  damages  payable  thereon,  shall  be  ascertained  by  the  rate  of  exchange,  or 
the  value  of  such  foreign  currency  at  the  time  of  the  demand  of  payment  or  acceptance. 
The  holder  of  the  bill  cannot  recover  damages  unless  he  has  paid  value  therefor. 
Wood's  Dig.  1858,  p.  72.  The  acceptance  of  payment  of  one  of  the  set  of  bills  is  a 
waiver  of  all  claim  for  damages  for  the  previous  dishonor  of  another  one  of  the  set. 
Page  V.  Warner,  4  Calif.  395. 

Connecticut.  The  damages  on  bills  of  exchange  drawn  or  indorsed  in  this  State, 
payable  in  any  other  State,  Territory,  or  District  of  the  United  States,  and  returned 
protested,  are,  besides  interest,  as  follows.  If  such  bill  shall  have  been  drawn  upon  any 
person  in  the  city  of  New  York,  two  per  cent ;  if  upon  any  ])crson  in  the  States  of  New 
Hampshire,  Vermont,  Maine,  Massachusetts,  Rhode  Island,  New  York  (except  the 
dty  of  New  York),  New  Jersey,  Pennsylvania,  Delaware,  Maryland,  or  Virginia,  or  in 
the  District  of  Columbia,  three  per  cent ;  if  upon  any  person  in  the  States  of  North 


656  NOTES   AND   BILLS.  [CH.  XIV. 

It    vvill   be    seen   that,   generally,   the   rate   of    damages   in- 


Oarolina,  South  Carolina,  Ohio,  or  Georgia,  five  per  cent ;  if  upon  any  person  in  any 
other  State,  Territory,  or  District  of  the  United  States,  eiglit  per  cent ;  and  such 
damages  shall  be  instead  of  interest  and  all  other  charges  up  to  the  time  of  giving 
notice  of  dishonor.     Stats.,  compilation  of  1854,  p.  696. 

Delaware.  The  damages  on  bills  of  exchange  drawn  on  any  person  beyond  seas, 
and  returned  unpaid  with  legal  protest,  shall,  as  to  the  drawer,  indorser,  and  all  con- 
cerned, be  at  the  rate  of  twenty  per  cent  on  the  contents  of  such  bills,  in  addition 
thereto.     Rev.  Code,  1852,  p.  183. 

Florida.  Damages  on  foreign  protested  bills  of  exchange  are  at  the  rate  of  five  per 
cent.     Thompson's  Dig.  1847,  p.  349. 

Georgia.  Upon  bills  of  exchange  drawn  in  this  State  upon  any  person  within  the 
United  States,  out  of  this  State,  returned  duly  protested,  the  holder  is  entitled  to  re- 
cover five  per  cent  damages  over  and  above  the  principal  sum,  together  with  lawful 
interest  on  the  aggregate  amount  from  the  time  of  giving  notice  of  protest  and  making 
demand  of  payment.  Upon  such  bills  drawn  on  any  place  beyond  the  limits  of  the 
United  States  the  holder  may  recover  the  principal,  with  postage,  protests,  and  other 
necessary  expenses,  and  interest  on  the  amount  of  these  sums  from  the  date  of  the  pro- 
test until  the  presenting  of  the  same  for  payment  in  this  State,  at  the  rate  established 
at  the  place  at  which  the  bill  was  payable ;  and  also  the  premium  on  such  aggregate 
amount  as  good  bills  of  like  description  are  worth  at  the  time  and  place  of  demand ; 
but  if  such  bills  arc  then  and  there  at  a  discount,  tbe  holder  is  to  deduct  the  discount ; 
and  the  holder  recovers  damages  at  the  rate  of  ten  per  cent  on  the  principal  sum,  with 
Georgia  interest.     Cobb's  New  Dig.  1851,  Vol.  I.  p.  521. 

Illinois.  The  damages  on  bills  of  exchange  expressed  for  value  received,  payable 
in  foreign  countries  and  protested  for  non-payment  or  non-acceptance,  are  ten  jicr  cent 
on  tiie  principal,  together  with  interest  and  the  costs  and  charges  of  protest.  On  such 
bills  payable  out  of  this  State,  but  within  the  United  States  or  their  Territories,  tho 
holder  recovers  five  per  cent,  together  with  interest  and  costs,  and  charges  of  protest. 
Stats.  Comp.  1858,  Vol.  I.  p.  290. 

Indiana.  Damages  payable  on  protest  for  non-payment  or  non-acceptance  of  a  bill 
oV  exchange,  drawn  or  negotiated  within  this  State,  are,  if  drawn  upon  any  person,  at 
any  place  out  of  this  State,  but  within  the  United  States,  five  per  cent ;  but  if  upon 
any  person  at  any  place  without  the  United  States,  ten  per  cent  on  tiie  principal  of 
sucii  bill.  Beyond  such  damages,  no  interest  or  charges  accruing  prior  to  protest  are 
allowed  ;  but  interest  from  the  date  of  the  protest  may  be  recovered.  As  to  any  bill 
jiayable  witliin  the  United  States,  the  rate  of  exchange  is  not  taken  into  account.  No 
damages  beyond  cost  of  protest  are  chargeable  against  drawer  or  indorser,  if,  upon 
notice  of  protest  and  demand  of  the  princii)al  sum,  the  same  is  paid,  nor  can  the 
holder  recover  damages  unless  he  has  given  value  therefor.  I  R.  S.  1852,  p  379.  A 
bill  drawn  by  a  person  resident  in  Indiana,  payable  in  New  Orleans,  and  directed  to 
iiimself  in  tiiat  city,  was  held,  upon  protest  for  non-payment,  to  come  witliin  tbe  equity 
of  tbe  statute,  and  the  drawer  was  made  liable  to  five  per  cent  damages.  State  Bank 
V.  Bowers,  8  Blackf.  72.  See  Ohio,  post,  p.  659,  and  Wood  v.  Farm.  &  Mcch.  Bank, 
7  T.  B.  Mon.  281.  In  State  Bank  v.  Rodgers,  3  Ind.  53,  a  bill  payal)lo  at  Cincinnati, 
the  parties  being  all  residents  of  Indiana,  was  also  held  to  be  within  the  statute.  Under 
the  provision  allowing  the  drawer  or  indorser,  upon  notice  of  j)rotest,  and  a  demand 
of  the  principal,  to  avoid  damages  by  payment,  a  notice  of  a  protest  is  a  suflicient 
demand  of  jiayment,  without  any  averment  of  a  special  demaiul.  May  r.  State  Bank. 
9  Ind.  233. 


CH.  XIV.]  EE-EXCIIANGE   AND   OTHER    DAMAGES.  657 

creases  wilh  the  distance  of  the  place  upon  which   the  hill  i? 
drawn. 


Iowa.  Tlie  ilaiiuigcs  on  hills  of  cxcliaiif^c  drawn  or  indorsed  witliin  this  State,  and 
protested  for  non-acceptance  or  iion-pavineni,  are,  for  bills  drawn  upon  a  person  at  a 
phicc  out  of  the  United  States,  or  in  C-alifurnia,  Oregon,  Utah,  or  New  Mexico,  ten 
per  cent  upon  the  principal,  with  interest  from  tiie  time  of  protest ;  for  hills  upon  a 
person  at  a  place  in  Iowa,  Missouri,  Illinois,  Wisconsin,  or  Miimesota,  three  per  cent, 
with  interest ;  for  hills  upon  Arkansas,  Louisiana,  Mississippi,  Tennessee,  Kentucky, 
Indiana,  Ohio,  Virginia,  District  of  Columbia,  Pennsylvania,  Maryland,  New  Jersey, 
New  York,  Massachusetts,  Rhode  Island,  or  Connecticut,  five  per  cent,  with  interest; 
for  hills  drawn  upon  a  person  at  a  place  in  any  other  State  in  the  United  States,  eight 
per  cent,  wiiii  interest.     Code  18.51,  p.  1.51,  §  9G5. 

Kentucky.  Wiiere  any  bill  of  exchange,  drawn  on  any  person  out  of  the  United 
States,  is  protested  for  non-payment  or  non-acceptance,  it  bears  ten  per  cent  per  year 
interest,  from  the  day  of  protest,  for  not  longer  tluiTi  eighteen  months,  unless  pavment 
be  sooner  demanded  from  the  ])arty  to  be  charged  Such  interest  is  recovered  up  to 
the  time  of  the  judgment,  and  the  judgment  bears  legal  interest  thereafter.  Damages 
on  all  other  bills  arc  disallowed.     R.  S.  1852,  p.  194. 

Louisiana.  The  rate  of  damages  to  be  allowed  upon  the  usual  protest  for  non- 
acceptance  or  noil  payment  oi  hills  of  exchange  drawn  or  negotiated  in  this  State  is, 
on  hills  drawn  on  and  payable  in  foreign  countries,  ten  per  cent ;  on  all  bills  drawn  on 
and  payable  in  any  other  State  in  the  United  States,  five  per  cent  on  the  iirincipal  sum 
specitied  in  such  bill.  Damages  are  in  lieu  of  interest,  charges  of  protest,  and  all  other 
charges  incurred  previous  to  and  at  the  time  of  giving  notice  of  non-acceptance  or 
non-payment,  but  the  holder  is  entitled  to  recover  lawful  interest  upon  the  aggregate 
amount  of  the  principal  sum,  and  of  the  damages  thereon  from  the  time  at  which 
notice  of  protest  for  non-acceptance  or  non-payment  shall  have  been  given  and  pay- 
ment demanded.  When  the  contents  of  the  bill  are  expressed  in  the  money  of  the 
United  States,  the  amount  of  the  principal  and  of  the  damages  is  ascertained,  without 
any  reference  to  the  rate  of  excliange  ;  but  when  expressed  in  a  foreign  currency,  the 
principal  and  damages  are  dcterminetl  by  the  rate  of  exchange  ;  but  when  the  value  of 
such  foreign  coin  is  fixed  by  the  laws  of  the  United  States,  the  value  thus  fixed  must 
prevail.     R.  S.  1856,  pp.  43,  44. 

Maine.  Damages  on  protest  of  bills  of  exchange  of  a  hundred  dollars  or  more,  pay- 
able by  the  acceptor,  drawer,  or  indorser  of  one  in  this  State,  are,  if  payable  at  a  place 
seventy-five  miles  distant,  one  percent;  if  payable  in  the  State  of  Now  York,  or  in  any 
State  northerly  of  it,  and  not  in  this  State,  three  per  cent ;  if  payable  in  any  Atlantic 
State  or  Territory  southerly  of  New  York  and  northerly  of  Florida,  six  per  cent;  and 
in  any  other  State  or  Territory,  nine  per  cent.     R.  S.  1857,  c.  82,  §  35,  p.  519. 

Maryland.  The  holder  of  a  bill  of  exchange  drawn  in  the  State  on  any  person  in 
a  foreign  country,  regularly  protested,  is  entitled  to  recover  so  much  current  money  as 
will  purchase  a  good  bill  of  exchange  of  the  same  time  of  payment,  and  iijjon  the 
same  place,  at  the  current  exchange  of  such  bills,  and  also  fifteen  per  cent  damages, 
fvith  costs  of  protest  and  interest;  if  drawn  on  any  person  in  any  other  of  the  United 
States,  and  protested,  the  holder  may  recover  in  the  same  way  a  sum  sufficient  to  buy 
another  bill  of  the  same  tenor,  and  eight  per  cent  damages  on  the  principal  sum,  and 
interest  from  the  time  of  protest,  and  costs.  It  is  also  provided  that  indorscrs  of  such 
Sills,  who  shall  have  paid  the  principal  and  the  damages  prescribed  by  statute,  may 
recover  the  same,  with  interest  thereon  from  the  drawer  or  any  other  jicrson  liable  to 
bim  upon  the  bill.  Laws,  Dorsey's  cd.,  Vol.  I.  p.  197.  The  indorser  of  a  bill,  remit- 
Vol.  L— 2  U 


6o8  NOTES   AND   BILLS.  [CH.  XIV. 

The  lability  for  the  payment  of  the  damages  allowed  by  statute 

ted  to  his  original  character  as  holder  and  payee,  cannot  recover  under  the  last  section 
of  this  statute,  but  only  as  holder.     Bank  of  U.  S.  v.  United  States,  2  How.  711. 

Massachusetts.  On  bills  of  exchange,  negotiated  in  Massachusetts,  payable  witiiout 
the  limits  of  the  United  States,  (excepting  places  in  Africa  beyond  the  Cape  of  Good 
Hope,  and  places  in  Asia  and  the  islands  thereof,)  the  party  liable  shall  pay  at  the  cur- 
rent rate  of  exchange,  and  damages  at  the  rate  of  five  per  cent  upon  the  contents, 
together  with  interest  thereon  from  the  date  of  the  protest;  but  on  bills  payable  in 
Africa  beyond  the  Cape  of  Good  Hope,  or  any  place  in  Asia  or  the  islands  thereof,  the 
party  liable  shall  pay  the  same  at  the  par  value  thereof,  with  twenty  per  cent  thereon 
in  full  of  all  damages,  interest,  and  charges.  On  bills  payable  within  the  States  of 
Maine,  New  Hampshire,  Vermont,  Rhode  Island,  Connecticut,  or  New  York,  the  jiarty 
liable  shall  pay  two  per  cent  with  interest  and  costs;  on  bills  payable  in  New  Jersey, 
Pennsylvania,  Maryland,  or  Delaware,  three  per  cent ;  Virginia,  North  Carolina, 
South  Carolina,  Georgia,  or  the  District  of  Columbia,  four  per  cent ;  and  if  in  any 
other  of  the  United  States  or  the  Territories  thereof,  five  per  cent.  Damages  on  bills 
for  a  sum  not  less  than  one  hundred  dollars,  and  payable  within  the  State,  at  a  distance 
of  not  less  than  seventy-five  miles  from  the  place  where  they  were  drawn  or  indorsed,  arc 
one  per  cent.     R.  S.  18;!6,  c.  33,  §§  1  -4  ;  Laws  of  1837,  p.  239  ;  Gen.  Stats.  1860,  c.  53. 

Michigan.  Whenever  any  bill  of  excliange,  drawn  or  indorsed  within  this  State, 
and  payable  without  the  limits  of  the  United  States,  is  protested  for  non-acceptance  or 
non-payment,  the  party  liable  shall  pay  the  contents  at  the  current  rate  of  exchange  at 
the  time  of  demand,  and  damages  at  the  rate  of  five  per  cent,  together  with  interest 
from  the  date  of  protest ;  and  such  payment  shall  be  in  full  of  all  damages,  charges, 
and  expenses.  The  damages  on  bills  payable  in  Wiscon.sin,  Illinois,  Indiana,  I'cnn- 
Bvlvania,  Ohio,  or  New  York  are  three  per  cent;  on  bills  payable  in  ^Missouri,  Ken- 
tucky, Maine,  New  Hampshire,  Vermont,  Masssichusetts,  Riiode  Island,  Connecticut, 
New  Jersey,  Delaware,  Maryland,  Virginia,  or  the  District  of  Columbia,  five  per  cent ; 
on  bills  payable  elsewhere  without  this  State  and  within  the  United  States  or  the  Ter- 
ritories thereof,  ten  per  cent.     Compiled  Laws,  18.'j7,  Vol.  I.  p.  408. 

Minnesota.  On  bills  of  exchange  drawn  or  indorsed  within  this  State,  and  payable 
without  the  limits  of  the  United  States,  and  duly  protested  for  non-acceptance  or  non- 
payment, the  party  liable  shall  pay  the  contents  at  the  current  rate  of  exchange  at  the 
time  of  demand,  and  damages  at  the  rate  of  ten  per  cent,  together  with  interest  from 
the  date  of  protest;  and  said  amount  of  contents,  damages,  and  interest  is  in  full  of  all 
damages,  charges,  and  expenses.  The  damages  on  bills  drawn  on  any  person  out  of 
this  State,  but  within  some  State  or  Territory  of  the  United  States,  are  at  the  rate  of 
five  per  cent,  together  with  interest  and  costs  and  charges  of  protest.  Stats.  Compiled, 
1858,  p.  375. 

Mississipfvi.  The  damages  on  all  bills  of  exchange  drawn  in  this  State  upon  any 
person  resident  within  the  United  States  and  out  of  this  State,  and  returned  protested 
for  non-acceptance,  are  five  per  cent,  and  interest  on  the  principal ;  on  bills  payable 
oat  of  the  United  States,  and  protested  f(jr  non-acceptance  or  non-payment,  they  are 
ten  per  cent,  and  interest  on  the  principal ;  and  in  all  cases  the  holder  is  entitled  to  all 
costs  and  charges.     Code  1857,  p   356. 

Missouri.  The  damages  on  bills  of  exchange  drawn  or  negotiated  within  this  State, 
and  protested  for  non-acceptance  or  non-payment,  arc  as  follows.  If  drawi\  on  any  pcr- 
Bon  at  any  place  within  this  State,  four  per  cent  on  the  principal ;  if  drawn  on  any  pcr- 
eon  wittiout  this  State,  but  within  the  United  States  or  the  Territories  thereof,  ten  per 
cent;  if  drawn  on  any  person  at  any  port  or  place  without  the  United  Stages  and  their 


CH.  XIV.]  RE-EXCHANGE   AND    OTHER   DAMAGES.  659 

for  rc-exchaiige  becomes  perfect  on  tlie  return  of  the  oill  pro- 

Territorics,  twenty  per  cent.  The  acceptor  is  made  liable  to  damages  upon  protest  for 
non-payment  of  Mils  accepted  in  this  State,  at  tlie  rate  of  four  per  cent  on  the  jirinci- 
pal  sum  ;  on  hills  accepted  at  any  place  without  this  State,  but  within  the  United  States 
or  their  Territories,  at  the  rate  of  ten  per  cent ;  and  on  bills  accepted  beyond  the 
United  States  and  their  Territories,  at  the  rate  of  twenty  per  cent.  These  damages 
can  be  recovered  only  by  a  holder  for  a  valuable  consideration.  The  damages  are  in 
lieu  of  interest,  charges  of  protest,  and  other  charges  previous  to  and  at  the  time  of 
giving  notice  of  dishonor.  When  tlie  bills  are  payable  in  money  of  the  United  States, 
the  rate  of  exchange  is  disregarded ;  but  when  payable  in  foreign  currency,  the  amount 
due,  exclusive  of  damages,  is  ascertained  by  the  rate  of  exchange  at  the  time  of  pay- 
ment. R.  S.  1 8.5.5,  Vol.  I.  pp.  293-29,5.  That  the  bill  must  contain  the  words  "  for  value 
received,"  in  order  to  entitle  the  holder  to  damages,  see  Hallowell  v.  Page,  24  Misso. 
590 ;   Kiggs  v.  City  of  St.  Louis,  7  id.  438. 

New  York.  The  rate  of  damages  to  be  allowed  and  paid  upon  the  usual  protest  for 
non-payment  or  non-acceptance  of  bills  of  exchange,  drawn  or  negotiated  within  this 
State,  is,  for  bills  payable  in  either  of  the  Ilastern  or  New  England  States,  in  New  Jer- 
sey, Pennsylvania,  Ohio,  Delaware,  Maryland,  or  Virginia,  or  in  the  District  of  Co- 
lumbia, three  per  cent;  for  bills  payable  in  North  Carolina,  South  Carolina,  Georgia, 
Kentucky,  or  Tennessee,  five  per  cent;  for  bills  payable  in  any  other  State  or  Terri- 
tory of  the  United  States,  or  at  any  other  place  on  or  .adjacent  to  this  continent  and 
north  of  the  equator,  or  in  any  British  or  other  foreign  possessions  in  the  West  Indies, 
or  elsewhere  in  the  Western  Atlantic  Ocean,  ten  per  cent;  for  bills  payable  in  any- 
port  or  place  in  Europe,  ten  per  cent.  These  damages  are  in  lieu  of  interest,  charojes 
of  protest,  and  all  other  charges  incurred  previous  to  and  at  the  time  of  giving  notice 
of  non-payment  or  non-acceptance ;  but  the  holder  may  recover  subsequent  interest 
and  damages.  Where  the  contents  of  the  bill  are  expressed  in  the  money  of  account 
or  currency  of  any  foreign  country,  the  amount  due,  exclusive  of  the  damages  payable 
thereon,  is  to  be  ascertained  and  determined  by  the  rate  of  exchange,  or  the  value  of 
such  foreign  currency  at  the  time  of  the  demand  of  payment.  The  holder  of  the  bill 
cannot  recover  damages  unless  he  has  paid  value  therefor.     2  R.  S.  p.  179,  180,  4th  cd. 

North  Carolina.  The  damages  on  ])rotestcd  bills  of  exchange,  drawn  or  indorsed 
in  this  State,  are  as  follows.  For  bills  drawn  upon  any  person  in  any  other  of  the 
United  States,  or  in  any  of  the  Territories  thereof,  three  per  cent ;  for  bills  payable  in 
any  other  place  in  North  America  (excepting  the  Northwest  Coast  of  America),  or  in 
any  of  the  West  India  or  Bahama  Islands,  ten  per  cent ;  for  bills  payable  in  the  island 
of  Madeira,  the  Canaries,  the  Azores,  the  Cape  de  Verd  Islands,  or  in  any  other  state 
or  place  in  Europe  or  South  America,  fifteen  per  cent ;  if  payable  in  any  other  part  of 
the  world,  twenty  per  cent  on  the  principal  sum.     R.  Code,  1854,  c.  13,  pp.  Ill,  112. 

Ohio.  The  damages  on  bills  of  exchange  negotiated  in  this  State,  drawn  on  any 
person  v/ithout  the  jurisdiction  of  the  United  States,  and  returned  protested,  are  twelve 
per  cent;  upon  bills  drawn  on  any  person  within  the  jurisdiction  of  the  United  States, 
and  without  the  jurisdiction  of  this  State,  six  per  cent.  The  bills  in  all  cases  hear 
interest  of  six  per  cent  from  the  date  of  protest.  No  damages  are  recoverable  in  case 
there  is  an  agreement  or  understanding  between  the  drawer  or  indorscr  and  the  payee 
or  indorsee,  permitting  the  bill  to  be  paid  at  any  other  place  than  that  on  which  it  was 
drawn.  R.  S.  1854,  Swan's  ed  ,  p.  576.  Under  this  statute  it  is  held  that  damages 
cannot  be  recovered  on  a  bill  drawn  upon  a  person  resident  in  Ohio,  althongli  payable 
\a  New  York.  Farmers'  Bank  v.  Brainerd,  8  Ohio,  292.  But  where  a  bill  was  drawn 
m  Cincinnati,  directed  to  "  T.  &  C.  New  Orleans,"  T.  &  C.  being  a  firm  having  bnsi- 


660  NOTES   AND    BILLS.  [CH.  XIV. 

tested,  and  is  as  fixed  and  determinate  an  obligation  as  the  debt 

ness  houses  both  in  New  Orleans  and  Cincinnati,  T.  residing  in  the  former  eity  and  C. 
in  the  latter,  and  the  bill  was  accepted  for  the  New  Orleans  house  bv  C.  at  Cincinnati, 
and  at  maturity  was  presented  for  payment  to  the  house  in  New  Orleans,  and  protested 
for  non-payment,  it  was  held  that  the  drawers  were  liable  to  pay  six  per  cent  damages, 
according  to  the  statute.  The  former  case  was  distinguished  from  this  by  the  fact  that 
the  bill  in  that  case  was  drawn,  not  on  a  Jinn,  but  an  individual,  resident  within  the 
State,  and  not  appearing  to  have  any  place  of  business,  without  the  State,  at  which  the 
bill  was  addressed  to  him.  West  ».  Valley  Bank,  6  Ohio  State,  168.  See  Indiana, 
ante,  p.  6.56,  for  decisions  to  the  like  effect  of  that  in  Farmers'  Bank  v.  Brainerd, 
8  Ohio.  292.  See  Cox  f.  Bank  of  Tennessee,  3  Sneed,  140;  Clay  v.  Hopkins,  3 
A.  K.  Marsh.  485  ;  Bank  of  U.  S.  v.  Daniel,  12  Pet.  32,  .53.  To  entitle  the  holder  of 
a  bill  drawn  in  Ohio  on  another  State  to  recover  the  statutory  damages,  a  protest  is 
necessary.     Case  v.  Heft'ner,  10  Ohio,  180,  187. 

Oregon.  The  damages  on  bills  of  exchange,  drawn  or  indorsed  in  this  State,  and 
payal>le  beyond  the  limits  of  the  United  States,  are  at  the  rate  of  ten  per  cent  in  addi- 
tion to  the  current  rate  of  exchange,  together  with  interest  from  date  of  protest ;  and 
such  amount  of  contents,  damages,  and  interest  is  in  full  of  all  damages,  charges,  and 
expenses.  On  bills  payable  out  of  this  State,  but  within  some  State  or  Territory  of 
the  United  State;;,  the  damages  are  five  per  cent,  with  interest  and  costs  and  charges 
of  protest.     Comp.  Stats.  \9,hb,  p.  .531. 

Pennsylvania.  The  damages  on  bills  of  exchange  drawn  or  indorsed  in  this  State, 
and  returned  for  nonaccei)tance  or  non-payment  with  a  legal  protest,  over  and  above 
the  |)rincipal  sum  and  lawful  interest,  and  charges  of  protest,  from  tlw  time  at  which 
notice  of  such  protest  shall  have  been  given,  are,  for  bills  payable  in  an"  of  the  United 
States  or  Territories  thereof,  excepting  Upper  and  Lower  California,  New  Mexico,  and 
Oregon,  five  per  cent;  for  bills  j)ayable  in  these  excepted  States  and  Territories,  ten  per 
cent ;  for  bills  payable  in  China,  India,  or  other  parts  of  Asia,  Africa,  or  islands  in  the 
Pacific  Ocean,  twenty  per  cent ;  for  bills  u])on  Mexico,  the  Spanish  Main,  West  In- 
dies or  other  Atlantic  islands,  east  coast  of  South  America,  Great  Britain,  or  other 
places  in  Europe,  ten  per  cent ;  for  bills  upon  places  on  the  west  coast  of  South  Amer- 
ica, fifteen  per  cent;  and  for  bills  upon  any  other  part  of  .the  world  ten  per  cent  upon 
such  principal  sum.  The  amount  of  such  bill,  .and  of  the  damages  payable  thereon,  is 
ascertained  and  determined  by  the  rate  of  exchange,  or  value  of  the  money  or  cur- 
rency mentioned  in  such  bill  at  the  time  of  notice  of  protest  and  demand  of  ])ayment. 
Purdon's  Dig.  1857,  p.  91  ;  Acts  of  1821  and  1850.  This  statute  has  regard  only  to 
drawers  and  indorsers,  and  not  to  acce[)tors  of  bills.     Watt  r.  Kiddle,  8  Watts,  545. 

Rhode  Island.  Bills  drawn  or  indorsed  in  this  State,  and  returned  from  anv  place  or 
country  witliout  the  limits  of  the  United  States  protested  for  non-acce|)tance  or  non- 
I)ayrnciit,  sul)ject  the  drawer  or  imlorser  to  the  payment  of  ten  per  cent  damages 
thereon,  and  charges  of  protest,  with  interest.  The  damages  on  bills  payable  in  other 
States  of  the  United  States,  and  returned  under  protest,  are  five  per  cent,  together  with 
charges  of  protest  and  interest,  from  the  date  of  protest,   li.  S.  1 857,  c.  1 22.  ^^  1  -3,  p.  277. 

South  Carolina.  The  damages  on  bills  of  exchange  drawn  upon  jiersons  resident 
within  the  United  States,  and  out  of  this  State,  and  returned  protested,  are  ten  per  cent ; 
and  on  all  bills  in  like  manner  drawn  upon  persons  resident  in  any  other  part  of  North 
America,  or  within  any  of  the  West  India  Islands,  and  protested,  the  damages  are 
twelv(!  and  a  half  percent;  and  on  all  bills  drawn  on  j)crsons  resident  in  any  other 
part  of  (he  world,  fifteen  f)er  cent,  and  all  charges  incidental  thereto,  with  lawful  iD- 
icrcBt,  until  the  same  he  paid.     Stats,  at  Large,  Vol.  IV.  p.  741  ;  Act  of  1780. 


CH.  XIV.]  RE-EXCHANGE  AND   OTHER  DAMAGES.  661 

itself;  (g-)  and  damages  may  be  recovered  without  being  specially 

Tennessee.  When  a  bill  of  cxciiange,  drawn  or  indorsed  in  this  State,  upon  any 
person  of  or  in  any  other  State  or  Territory,  is  returned  protested,  the  payee  may 
recover  from  the  drawer  or  indorsers,  besides  the  principal,  interest,  and  charges  of  pro- 
test, damages  at  tiie  following  rates  per  cent  upon  the  principal  sum  :  Three  per  cent, 
if  the  bill  wivs  drawn  upon  a  person  of  or  in  any  of  the  United  States  or  Territories 
thereof;  fifteen  percent,  if  drawn  upon  any  persoii  of  or  in  any  otlier  State  or  place 
in  Nortii  America  bordering  upon  the  Gulf  of  Mexico,  or  of  or  in  any  of  the  West  India 
Islands.  The  damages  are  in  lieu  of  interest  and  all  other  eiiarges,  excej)t  charges  of 
protest,  to  tlie  time  when  notice  of  the  protest  and  demand  of  payment  shall  have  been 
given ;  but  interest  shall  be  computed  from  that  time  on  the  principal,  together  with  the 
damages  and  charges  of  protest.  Code  1858,  §§  1963,  1964.  It  is  held  that  a  bill 
drawn  and  accepted  in  this  State,  all  the  parties  to  which  reside  in  this  State,  I)ut  paya- 
ble in  anotiier  State,  is  not  such  a  bill  as  is  contemplated  in  the  statute,  upon  protest 
of  which  tiiree  per  cent  damages  can  be  recovered  by  the  holder.  Co.x  v.  Bank  of 
Tennessee,  3  Sneed,  140. 

Texas.  The  damages  on  bills  of  exchange  drawn  in  this  State,  upon  any  person 
living  beyond  the  limits  of  this  State,  are  ten  per  cent  on  the  amount  of  such  bill, 
together  with  interest  and  costs  of  suit  tliereon,  accruing  when  the  liability  of  the 
drawer  or  indorser  of  such  bill  has  been  fixed  by  the  commencement  of  a  suit  instead 
of  a  protest.     Oldham  &  Whiten,  Dig.  1859. 

Virginia.  When  a  bill  of  exchange,  drawn  or  indorsed  within  this  State,  is  pro- 
tested for  non-acceptance  or  non-payment,  the  party  liable  shall  pay  damages  upon  the 
principal,  at  the  rate  of  three  per  cent  if  the  bill  be  payable  out  of  Virginia  and 
within  the  United  States,  and  at  the  rate  of  ten  per  cent  if  the  bill  be  payable  without 
the  United  States.     Code  1849,  p.  582. 

Wisconsin.  Whenever  any  bill  of  exchange  drawn  or  indorsed  within  this  State, 
and  payable  without  the  limits  of  the  United  States,  shall  be  duly  protested  for  non- 
acceptance  or  non-payment,  the  party  liable  for  the  contents  of  such  bill  shall  pay  the 
same  at  the  current  rate  of  exchange  at  the  time  of  the  demand,  and  damages  at  the 
rate  of  five  per  cent  upon  the  contents  thereof,  together  with  interest  on  the  said  con- 
tents, to  be  computed  from  the  date  of  the  protest ;  and  said  amount  of  contents,  dam- 
ages, and  interest  shall  be  in  full  of  all  damages,  charges,  and  exjienses.  The  damages 
on  bills  of  exchange,  payable  within  some  State  or  Territory  of  the  United  States 
adjoining  this  State,  are  five  per  cent,  together  with  costs  and  charges  of  protest 
aiul  interest.  On  bills  drawn  on  other  States,  the  holder  recovers  ten  per  cent  dam- 
ages, together  with  costs  and  charges  of  protest  and  legal  interest.  11.  S.  1858,  c.  60, 
^  8-10,  p.  409. 

((/)  Ilargous  V.  Lahens,  3  Sandf  213.  It  was  held  in  this  case  that  the  holder  of  a 
foreign  bill  is  entitled  to  his  damages,  on  its  non-payment,  upon  the  whole  amount  of 
the  bill,  although  he  may  subsequently  to  the  protest  receive  part  payment  of  the  bill 
fi'om  the  acceptor  at  the  place  where  it  is  due  and  payable.  Laing  v.  Barclay,  3  Stark. 
38,  and  Bangor  Bank  v.  Hook,  5  Greenl.  174,  to  the  contrary,  are  reviewed.  "Now 
it  is  obvious,"  says  Sundford,  J.,  "  that  the  subsequent  collection  of  the  amount  of  the 
protested  bill  at  the  place  where  it  was  payable  will  not  make  the  remitter  whole  in  the 
transaction,  unless  it  sh.all  so  hap[  en  that  the  rate  of  exchange  is  at  that  time  so  favor- 
able to  him  that  he  can  sell  a  bill  drawn  by  him  against  such  collection  for  as  much  as 
It  cost  him  to  remit  and  take  up  the  protested  bill  when  he  received  notice  of  its  dis- 
honor, together  with  his  expenses  in  the  collection.  Thus  the  result  in  reference  to  an 
Rctaal  reimbursement  of  the  remitter,  or  a  restoration  to  the  same  state  he  would  have 

VOL.  I.  56 


662  NOTES   AND    BILLS.  [CH.  XIV. 

laid  ill  th-^  declaration. (/i)  It  is  said,  however,  that  an  averment 
of  protest,  is  necessary  to  the  recovery  of  damages,  because  they 
accrue  only  on  the  protest,  (i)  It  is  generally  held  that  these 
damages  are  not  regarded  in  law  as  a  penalty,  but  as  a  com- 
pensation made  necessary  by  the  principle  of  indemnity. (}') 

To  the  sum  due  on  the  face  of  the  paper,  legal  interest,  from 
the  time  when  it  became  due,  should  be  added.  Noting,  post- 
ages, and  perhaps  any  other  necessary  expenses,  may  also  be 
recovered  ;  but  a  money  count  should  be  added  to  the  declara- 
tion to  cover  these  charges. (^^) 

If  an  indorser  is  sued,  and,  by  a  judgment  against  him,  com- 
pelled to  pay,  he  cannot  ordinarily  charge  the  costs  of  suit,  or 
the  expenses  of  his  defence,  to  prior  parties ;  for  his  remedy 
against  them  is  limited  to  what  he  must  have  paid  without 
suit.(/)  If,  however,  the  party  thus  obliged  to  pay  was  an  ac- 
commodation party,  that  is,  if  he  drew,  accepted,  or  indorsed 
the  paper  wholly  and  knowingly  without  consideration,  and 
with  intention  to  accommodate  another  party,  he    may  charge 

been  in  if  the  bill  had  been  paid  according  to  its  tenor  and  obligation,  would  depend 
upon  the  fluctuations  of  exchange,  the  credit  of  the  holder  as  a  drawer  of  foreign  bills, 
the  continued  solvency  of  his  agent  abroad,  and  other  considerations  which  we  need 
not  enumerate.  It  was  intended  by  tlie  rule  of  fixed  damages  provided  in  the  statute 
to  avoid  all  inquiries  of  this  character  in  every  ease  of  protested  bills  of  exchange." 
See  contra,  Warren  v.  Coombs,  20  Maine,  139. 

(A)  Lloyd  V.  McGarr,  3  Barr,  474,  per  Gibson,  C.  J.  The  damages  allowed  by  stat- 
ute are  not  given  as  a  penalty  for  drawing  without  authority,  but  as  commutation  tor 
interest,  damages,  and  re-exchange.  It  is  in  truth,  a  liquidation  of  the  damages,  not 
by  the  parties,  but  by  the  law,  fi.xing  tlie  compensation  for  tlic  loss  beforehand,  to  save 
time  and  litigation  ;  and  if  damages  need  not  be  s|)ecially  laid  where  tiierc  is  no  statute 
on  the  subject,  as  tliey  certainly  need  not  be  in  England,  no  rule  of  pleading  requires 
them  to  be  laid  in  their  liquidated  form.  In  Bank  of  U.  S.  r.  United  States,  2  How. 
711,  737,  McTjciin,  J.  remarked,  that  the  damages  on  bills  of  exchange  given  by  the 
statute  arc  as  much  a  part  of  the  contract  as  the  interest. 

(0  Jordan  v.  Bell,  8  Port.  Ala.  53. 

( /)  Among  tlic  leading  authorities  on  this  point  are  Lcnnig  v.  Ralston,  23  Penn. 
State,  137,  140  ;  Allen  v.  Union  Bank  of  Louisiana,  .5  Whart.  420,  425  ;  Bangor  Bank 
».  Hook,  5  Grcenl.  174. 

(k)  Kcndrick  v.  Lomax,  2  Cromp.  &  J.  405,  2  Tyrw.  438 ;  UoJImul,  B. :  "I  have 
always  heard  it  stated,  that  if  there  was  no  count  s|)e<'ially  stating  them,  those  charges 
could  not  be  recovered.     Interest  is  clearly  difl'erciit.     It  flriws  out  of  the  comiact." 

(/)  Dawson  v.  Morgan,  9  B.  &  C.  618;  Koach  v.  Thumpson,  4  Car.  &  1*.  194; 
Simpson  v.  Griffin,  9  Johns.  131  ;  Steele  v.  S.awyer,  2  McCord,  459.  In  King  v.  Phil- 
lips, Pet.  C.  C.  350,  the  question  whether  the  indor.scrs  of  a  bill  could  recover  the  costs 
of  a  suit  against  them  was  intended  to  ho  submitted  to  the  court,  but  the  court  sftid 
that  it  could  not  arise  on  the  declaration,  inasmuch  as  there  was  no  money  count  in  it 


CH.  XIV.]  RE-EXCHANGE   AND   OTHER   DAMAGES.  663 

to  this  other  party,  not  only  tlie  face  of  the  paper,  hut  the 
costs  of  an  action  against  him.  We  know  no  authority,  how- 
ever, which  permits  him  to  charge  expenses  as  well  as  costs. 
And  undoubtedly  the  charge  of  costs  would  be  excluded  if  the 
party  accommodated  could  show  that  the  defence  to  the  suit  was 
wholly  unnecessary  and  unjustified. 

It  may  be  well  to  remark,  that  the  rate  of  exchange  is  some- 
times natural  and  sometimes  artificial ;  and  sometimes  it  con- 
tains both  of  these  elements.  Thus,  our  exchange  on  England 
is  never  nominally  at  par,  because  our  statute  makes  the  pound 
sterling  equal  to  only  four  dollars  and  forty-four  cents  ;  which  is 
nearly  ten  per  cent  less  than  it  is  really  when  paid  in  gold. 
Accordingly,  while  £  100  sterling  is  legally  worth  only  $444,  to 
pay  that  sum  in  London  one  must  pay  in  New  York,  if  the  ex- 
change is  actually  at  par,  about  $484.  A  recent  United  States 
statute  has  provided,  that,  for  the  purpose  of  estimating  duties 
on  imported  goods,  the  pound  sterling  shall  be  calculated  at  four 
dollars  and  eighty-four  cents,  which  is  about  its  true  value. (m) 
But  the  matter  of  exchange  is  left  to  itself.  Merchants  regulate 
that  by  adding  from  nine  to  ten  per  cent  to  the  actual  rate  of 
the  day  (or  that  which  would  be  the  rate  if  it  were  determined 
by  business  alone),  and  thus  the  buying  and  selling  rate  is  made. 
This  is  seldom  less  than  eight  per  cent,  for  if  it  falls  so  low,  or 
nearly  so  low,  gold  comes  over  from  England ;  and  seldom  more 
than  eleven,  for  if  it  rises  so  high,  or  near  this  rate,  gold, 
instead  of  bills,  is  sent  to  England. 

If  a  foreign  creditor  sues  his  debtor  in  this  country,  not  on  a 
bill  of  exchange.,  many  authorities  say  that  he  recovers  his  debt 
only  at  the  legal  par  of  exchange,  without  any  allowance  or 
increase  for  the  rate  of  exchange,  either  natural  or  artificial. (w) 

(m)  Statute  of  July  27,  1842,  c.  66,  5  U.  S.  Stats,  at  Large,  496. 

(n)  In  Martin  v.  Franklin,  4  Johns.  124,  the  plaintiffs  were  merchants  in  Liverpool, 
and  it  was  admitted  that  the  debt  was  contracted  in  Great  Britain,  and  that  the  ac- 
counts between  the  parties  are  in  sterling  money.  The  declaration  stated  the  defend- 
ants as  being  indebted  to  the  plaintiffs  in  the  city  of  New  York.  The  court  held  that 
■'  the  debt  is  to  be  paid  according  to  the  par,  and  not  the  rate  of  exchange.  It  is  re- 
coverable and  payable  here  to  the  plaintiffs  or  their  agent ;  and  the  courts  are  not  to 
inquire  into  the  disposition  of  the  debt,  after  it  reaches  the  hands  of  the  agent.  He 
may  remit  the  debt  to  his  principal  abroad,  in  bills  of  excliange,  or  he  may  invest  it 
here  on  his  behalf,  or  transmit  it  to  some  other  part  of  the  United  States,  or  to  other 
countries  on  the  same  account.  We  cannot  trace  the  disposition  wliich  is  to  take 
place  subsequent  to  the  recovery,  nor  award  special  damages  upon  such  uncertaiu  c«l- 


6G-i  KOTES   A>^D    BILLS.  [CH.  XIV. 

But  tliis  rule  would  plainly  operate  injustice  to  an  English  cred- 
itor, to  the  amount  at  least  of  the  difference  between  the  legal 
par,  or,  as  it  may  be  called,  the  artificial  par,  and  the  natural 
par.  For  if  one  owing  £  1,000  in  London  could  pay  that  in  New 
York  with  $  4,444,  the  English  creditor  would  lose  by  the  error 
of  our  law  the  difference  between  that  sum  and  $4,844,  whicli, 
because  the  actual  par,  is  adopted  by  our  country  for  all  pur- 
poses of  revenue. 

culations.  All  that  the  plaintiffs  can  ask  is  their  debt  justly  liquidated  and  paid  in 
the  lawful  currency  of  the  United  States." 

In  Adams  v.  Cordis,  8  Pick.  260,  the  court,  citing  the  above,  say  that  they  subscribe 
to  this  doctrine.  Of  the  case  of  Smith  v.  Shaw,  2  Wash.  C.  C.  167,  to  the  contrary, 
the  court  remark,  that  it  is  of  very  little  authority,  as  the  point  was  not  stated  in  argu- 
ment, and  was  settled  suddenly  by  the  court  without  advancing  any  reason  in  support 
of  it.  In  Lodge  v.  Spooner,  8  Gray,  160,  a  certain  sum  of  money  was  to  be  paid  in 
China  on  the  performance  of  an  agreement  entered  into  between  the  parties.  The 
plaintiff  performed  liis  part  of  the  contract,  and  claimed  to  recover,  in  atldition  to  the 
original  sum  and  interest,  the  rate  of  exchange  between  this  country  and  Cliina  at  the 
time  when  the  money  should  have  been  paid.  But  tiie  court  held  that  he  was  not  en- 
titled to  the  exchange,  and  evidence  that  there  was  no  tribunal  in  Cliina  in  which  one 
foreigner  could  recover  of  another,  and  that  these  funds  were  to  be  invested  in  China, 
was  held  to  be  inadmissible.  In  Weed  v.  Miller,  1  McLean,  423,  after  reviewing  the 
autliorities,  the  court  say  that,  at  all  events,  the  rate  of  exchange  is  not  recoverable  on 
a  note  of  hand  where  the  declaration  lays  the  venue  in  the  State  where  the  suit  is 
brouglit,  and  there  is  no  count  nor  allegation  to  cover  the  difference  of  exchange, 
although  tlie  difference  of  exchange  may  always  be  recovered  on  a  bill  of  exchange. 
But  the  rate  of  exchange  may  be  recovered  on  a  promissory  note  given  in  New  York, 
payable  at  Detroit,  when  it  is  expressly  stated  to  be  payable  with  tiie  current  rate  of 
'•xchange.  Griitacap  v.  Woulluise,  2  McLean,  581  ;  Scoficld  v.  Day,  20  Johns.  102. 
But,  on  the  other  hand,  the  English  decisions  and  some  American  decisions  are  in 
favor  of  allowing  a  foreign  creditor  to  be  paid  at  the  rate  of  exchange.  Scott  v.  Bevan, 
2  B.  &  Ad.  78  ;  Cash  v.  Kennion,  11  Ves.  314  ;  Grant  v.  Healey,  3  Sumner,  .')23.  And 
see  Howard  v.  Central  Bank,  3  Ga.  37.5  ;  Bank  of  Missouri  v.  Wright,  10  Misso.  719. 
In  Grant  v.  Healey,  3  Sumner,  523,  Mr.  Justice  Story,  delivcnng  the  opinion  of  the 
court,  said :  "  I  take  the  general  doctrine  to  be  clear,  that  whenever  a  (kl>t  is  made 
])ayablc  in  one  country,  and  it  is  afterwards  sued  for  in  another  country,  the  creditor 
is  entitled  to  receive  the  full  sum  necessary  to  replace  the  money  in  the  country  where 
it  ought  to  iiavc  been  pai<l,  with  interest  for  the  delay;  for  then,  and  then  only,  is  ho 
fidly  indemnified  for  the  violation  of  the  contract.  In  every  such  case,  tlie  plaintiff  is, 
therefore,  entitled  to  have  the  debt  due  to  him  first  ascertained  at  the  ])ar  of  exchange 
between  the  two  countries,  and  then  to  have  the  rate  of  exchange  between  those  coun- 
tries added  to,  or  subtracted  from,  the  amount,  as  the  case  may  require,  in  order  to  re- 
place the  money  in  the  country  where  it  ouglit  to  be  paid.     It  seems  to  mc  tliat  thig 

dcctrine  is  founded  on  the  true  principles  of  reci])rocal  justice It  is  suggested, 

that  the  case  of  bills  of  exchange  stands  upon  a  distinct  ground,  that  of  usage;  and  il 
»n  exception  from  the  general  doctrine.     I  think  otherwise." 


END   OF   VOL.   I. 


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